| Matter of Cuomo v Hayes |
| 2008 NY Slip Op 06988 [54 AD3d 855] |
| September 16, 2008 |
| Appellate Division, Second Department |
| In the Matter of Andrew M. Cuomo, as Attorney General of theState of New York, et al., Petitioners, v Gerald V. Hayes, as Judge of the DutchessCounty Court, et al., Respondents. |
—[*1] Gerald V. Hayes, Poughkeepsie, N.Y., respondent pro se. Hochheiser Hochheiser & Inwood LLP, New York, N.Y. (Daniel A. Hochheiser and MichaelE. Sande of counsel), for respondent Norman Barabash. David S. Goodman, Poughkeepsie, N.Y. (James W. Hill of counsel), for respondent DouglasAllen.
Proceeding pursuant to CPLR article 78, inter alia, in the nature of prohibition to prohibit therespondent Gerald V. Hayes, a Judge of the County Court, Dutchess County, from enforcing anorder dated November 28, 2007, in a criminal action entitled People v Barabash, pendingin the County Court, Dutchess County, under indictment No. 77/2005. Motion by the respondentNorman Barabash to dismiss the indictment.
Adjudged that the petition is denied and the proceeding is dismissed, without costs ordisbursements; and it is further,
Ordered that the motion is denied.[*2]
In 2004, the respondents Norman Barabash and DouglasAllen were indicted for promoting prostitution in the fourth degree (see Penal Law§ 230.20), arising from their operation of a tourism business in New York that allegedlyprovided "sex tours" or trips to the Philippines and other countries for the purpose of having sexwith prostitutes. In an order dated November 28, 2007, Judge Gerald V. Hayes of the CountyCourt, Dutchess County, granted a request by the respondent Barabash to charge the jury at trialthat the People were required to prove that prostitution was illegal in the Philippines.
As a result, the petitioners commenced this CPLR article 78 proceeding in the nature ofprohibition against the respondents—Judge Hayes, Barabash, and Allen—seeking,inter alia, to prohibit enforcement of the order dated November 28, 2007. The petitioners argue,among other things, that Judge Hayes exceeded his authority by requiring the People to proveelements of the crime of promoting prostitution in the fourth degree, that were neither intendednor enacted by the Legislature (see Penal Law § 230.20; see People v Barabash, 35 AD3d873, 874 [2006]), and that the planned charge would constructively amend the indictment,thereby usurping the power of the grand jury to determine the charges, and change the theory ofthe prosecution. We determine that prohibition does not lie.
"The extraordinary remedy either of prohibition or mandamus lies only where there is a clearlegal right, and in the case of prohibition only when a court . . . acts or threatens toact without jurisdiction in a matter over which it has no power over the subject matter or where itexceeds its authorized powers in a proceeding over which it has jurisdiction" (Matter of Stateof New York v King, 36 NY2d 59, 62 [1975]; see Matter of Holtzman v Goldman,71 NY2d 564, 569 [1988]; Matterof Johnson v Price, 28 AD3d 79, 81 [2006]; Matter of Kimyagarova v Spitzer, 16 AD3d 507 [2005])."Moreover, prohibition 'will not lie as a means of seeking collateral review of mere trial errors ofsubstantive law or procedure, however egregious the error may be, and however cleverly theerror may be characterized by counsel as an excess of jurisdiction or power' " (Matter of Blumen v McGann, 18 AD3d870, 870 [2005], quoting Matter of Rush v Mordue, 68 NY2d 348, 353 [1986];see Matter of Pirro v Angiolillo, 89 NY2d 351, 355 [1996]; Matter of Roberts vCounty Ct. of Wyoming County, 34 NY2d 246, 248 [1974]).
Although the distinction between legal errors and actions in excess of power is not alwayseasy to discern, "abuses of power may be identified by their impact upon the entire proceeding asdistinguished from an error in a proceeding itself proper" (Matter of Holtzman v Goldman,71 NY2d at 569, citing Matter of State of New York v King, 36 NY2d at 64; seeMatter of Steingut v Gold, 42 NY2d 311, 315 [1977]). Finally, even if prohibition lies and anact in excess of power is perceived, the remedy is not granted as of right but only in the sounddiscretion of the reviewing court (see Matter of Rush v Mordue, 68 NY2d at 354;Matter of Dondi v Jones, 40 NY2d 8, 13 [1976]; La Rocca v Lane, 37 NY2d 575,579 [1975]).
On a prior appeal, we rejected the contention raised by the respondents Barabash and Allenthat the evidence submitted to the grand jury was insufficient to support an indictment forpromoting prostitution in the fourth degree because there was no proof submitted thatprostitution was illegal in the Philippines (see People v Barabash, 35 AD3d 873 [2006]). Subsequently, PenalLaw § 230.25 (promoting prostitution in the third degree) was amended to clarify that "thelegality of prostitution" in a "foreign jurisdiction" was irrelevant (Penal Law § 230.25 [1],as amended by L 2007, ch 74, § 1). The Senate's Memorandum in Support of theamendment indicated that the language of Penal Law § 230.20 (promoting [*3]prostitution in the fourth degree) already made clear that a "travelbusiness that sells prostitution tours" could be prosecuted for that offense (see SenateMem in Support of L 2007, ch 74, 2007 McKinney's Session Laws of NY, at 1602).
Under the circumstances presented, we decline to exercise our discretion as a writ ofprohibition does not lie against the respondent Judge Hayes given that the petitioners are merelyseeking collateral review of what they claim is an egregious error of law (see Matter ofHoltzman v Goldman, 71 NY2d at 569-570). Their contention that the trial court is actingultra vires as a result of its legal interpretation of a statute does not justify the invocation of thisextraordinary remedy, even if ultimately nonreviewable by way of appeal (see Matter of Stateof New York v King, 36 NY2d at 63; Matter of Johnson v Price, 28 AD3d at 81-82).
The respondent Barabash's motion to dismiss the indictment must be denied on the groundthat the motion is not properly made before this Court (see CPL 210.20).
The petitioners' remaining contentions are without merit. Rivera, J.P., Lifson, Covello andBalkin, JJ., concur.