| Matter of Schermerhorn v Becker |
| 2009 NY Slip Op 05667 [64 AD3d 843] |
| July 2, 2009 |
| Appellate Division, Third Department |
| In the Matter of Otis B. Schermerhorn Jr., Petitioner, v Carl F.Becker, as Judge of the County Court of Delaware County, et al.,Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Owen Demuth of counsel), for Carl F.Becker, respondent. Richard D. Northrup Jr., District Attorney, Delhi (John L. Hubbard of counsel), for RichardD. Northrup Jr., respondent.
Stein, J. Proceeding pursuant to CPLR article 78 (initiated in this Court pursuant to CPLR506 [b] [1]) to, among other things, review a determination of respondent County Judge ofDelaware County suspending petitioner's driver's license.
Petitioner was arrested in the Village of Stamford, Delaware County for driving whileintoxicated (hereinafter DWI). According to the results of a breath test administered shortlythereafter, petitioner's blood alcohol content was .15%. Petitioner was initially arraigned inVillage Court on a simplified traffic information charging him with the misdemeanor offenses ofper se and common-law DWI (see Vehicle and Traffic Law § 1192 [2], [3]; seealso Vehicle and Traffic Law § 1193 [1] [b]). No prompt suspension hearing was heldat the time of his arraignment and petitioner's driver's license was, therefore, not suspended atthat time (see Vehicle and Traffic Law § 1193 [2] [e] [7]; Pringle v Wolfe,88 NY2d 426 [1996], cert denied 519 US 1009 [1996]).[*2]
Petitioner was subsequently indicted by a grand jury forthe same misdemeanors (see CPL 170.20) and was arraigned on the indictment byrespondent County Judge of Delaware County (hereinafter respondent). Just as respondent wasabout to conclude the arraignment proceeding, respondent Richard D. Northrup Jr., the DelawareCounty District Attorney, pointed out that petitioner's driver's license had not yet been suspendedand that any suspension was required to be made prior to "the conclusion of all proceedingsrequired for . . . arraignment" (Vehicle and Traffic Law § 1193 [2] [e] [7][b]), if the requisite findings were made. Following a brief exchange among the parties,respondent summarily determined that a prompt suspension hearing was not required andsuspended petitioner's driver's license pending prosecution. Petitioner thereafter commenced thisproceeding pursuant to CPLR article 78, seeking a judgment annulling respondent'sdetermination to suspend his driver's license without a hearing and determining, among otherthings, that Northrup exceeded his jurisdiction by advocating for such suspension. Also raised inthis proceeding is the applicability of the prompt suspension law in the context of apostindictment arraignment and the appropriate scope of a Pringle hearing.
Initially, we note that because the indictment against petitioner was dismissed following thecommencement of this proceeding—thereby terminating the temporary suspension of hislicense—this matter is moot (see Matter of Hearst Corp. v Clyne, 50 NY2d 707,714 [1980]; Matter of King vJackson, 52 AD3d 974, 975 [2008]). Thus, we may not proceed to address the meritsunless the exception to the mootness doctrine applies (see Matter of Hearst Corp. vClyne, 50 NY2d at 714; Matter ofNRG Energy, Inc. v Crotty, 18 AD3d 916, 918-920 [2005]). We find the exception tobe supported by the record only with regard to the issue of whether a district attorney mayparticipate in a Pringle hearing.
The exception to the mootness doctrine exists only where all of the following circumstancesare present: "(1) a likelihood of repetition, either between the parties or among other members ofthe public; (2) a phenomenon typically evading review; and (3) a showing of significant orimportant questions not previously passed on, i.e., substantial and novel issues" (Matter ofHearst Corp. v Clyne, 50 NY2d at 714-715; see Matter of NRG Energy, Inc. vCrotty, 18 AD3d at 920). The prompt suspension law is implicated every time a person isarrested for DWI in violation of Vehicle and Traffic Law § 1192 (2), (2-a), (3) or (4-a) andis alleged to have had a blood alcohol level of .08% or more as indicated by a chemical test(see Vehicle and Traffic Law § 1193 [2] [e] [7] [a], [b]). Given the temporarynature of prompt suspension of a driver's license in the context of a DWI charge, the issuespresented herein are all likely to evade appellate review (see Matter of Vanderminden v Tarantino, 60 AD3d 55, 57-58[2009], lv denied 12 NY3d 708 [2009]). In addition, while all of the issues raised bypetitioner are substantial and important, only two—the role of a district attorney and theapplicability of the prompt suspension law to postindictment arraignments—are novel.The third issue—the nature and scope of the Pringle hearing—haspreviously been addressed (see Pringle v Wolfe, 88 NY2d at 434-435; Matter ofVanderminden v Tarantino, 60 AD3d at 58) and, therefore, does not fall within theexception. Likewise, inasmuch as the record does not support a finding that the promptsuspension law's applicability to a postindictment arraignment is an issue that is likely torecur,[FN1][*3]this issue also does not fall within the exception.
Turning to the merits of the one issue that falls within the exception to the mootnessdoctrine, petitioner argues that Northrup impermissibly participated in the proceedingsconcerning the temporary suspension of his license. We are unpersuaded. The office of districtattorney is a statutory creation and its powers and duties are therefore limited to those conferredby the Legislature (see Czajka v Breedlove, 200 AD2d 263, 265 [1994], lvdenied 84 NY2d 809 [1994]). As pertinent here, County Law § 700 (1) authorizes adistrict attorney "to conduct all prosecutions for crimes and offenses cognizable by the courts ofthe county for which he or she shall have been elected or appointed" (County Law § 700[1]; see Czajka v Breedlove, 200 AD2d at 265). That statute does not explicitly establisha role for the district attorney in civil or administrative proceedings.
The prompt suspension law (see Vehicle and Traffic Law § 1193 [2] [e] [7])"mandates that before the conclusion of all proceedings necessary for arraignment, theJudge must suspend the driver's license of a person charged with [DWI] upondetermining that the accusatory instrument is sufficient on its face and finding reasonable causeto believe that the driver operated a motor vehicle with a blood alcohol level in excess of [.08] of1% as evidenced by the results of a chemical test" (Pringle v Wolfe, 88 NY2d at 429-430[emphasis added]). Thus, under the statutory scheme, the accusatory instrument charging aperson with DWI not only commences a criminal proceeding, but also serves to trigger theconcomitant mandate that the court expeditiously conduct a Pringle hearing (seeVehicle and Traffic Law § 1193 [2] [e] [7]). We have recently recognized that aPringle hearing is a civil administrative proceeding separate and apart from theunderlying criminal prosecution, but which runs parallel thereto (see e.g. Matter ofVanderminden v Tarantino, 60 AD3d at 59-60; Matter of Schmitt v Skovira, 53 AD3d 918, 919-920 [2008]). Assuch, a Pringle hearing that is not kept closely confined to its statutorily prescribedparameters could necessarily have an effect on the criminal proceeding which it accompanies(see Matter of Vanderminden v Tarantino, 60 AD3d at 59-60; see also Pringle vWolfe, 88 NY2d at 435).
In the current case, no Pringle hearing was held. Northrup merely reminded CountyCourt of the prompt suspension law requirement and offered to hand the court the original of thebreathalyzer test result. Indeed, consistent with the clear purpose of preventing a promptsuspension hearing from being converted to "an opportunity for free-wheeling discovery"(Matter of Vanderminden v Tarantino, 60 AD3d at 60 [internal quotation marks andcitations omitted]; cf. Pringle v Wolfe, 88 NY2d at 435), a district attorney's role underthe statute seemingly would [*4]not ordinarily need to exceedsuch limited participation.[FN2]
In fact, Vehicle and Traffic Law § 1193 (2) (e) (7) (b) provides that, if the underlyingchemical test establishing blood alcohol content is not available at the first appearance in courtby the accused, then "the complainant police officer or other public servant shall transmitsuch results to the court at the time they become available" (emphasis added). Since a districtattorney is a public servant (see CPL 1.20 [31]; Penal Law § 10.00 [15]; Matter of Katherine B. v Cataldo, 5NY3d 196, 203 n 5 [2005]), his or her limited role at a Pringle hearing is by"necessary implication" (Czajka v Breedlove, 200 AD2d at 265; see Matter ofSchmitt v Skovira, 53 AD3d at 921). Thus, while a district attorney clearly does not hold thestatus of a party in a Pringle hearing, Northrup's participation herein did not exceed hisauthority and was entirely appropriate. Accordingly, petitioner is not entitled to the reliefrequested (see CPLR 7803 [1], [2]).
Spain, J.P., Lahtinen, Malone Jr. and Garry, JJ., concur. Adjudged that the petition isdismissed, without costs.
Footnote 1: Although the prosecution ofDWI offenses by indictment is not uncommon (see e.g. People v Emerson, 42 AD3d 751 [2007]), most DWIdefendants are ordinarily arrested without a warrant following a roadside stop. CPL 140.20 (1)requires that such person be promptly brought before a local criminal court on a local criminalcourt accusatory instrument (see People ex rel. Maxian v Brown, 77 NY2d 422, 426-427[1991]; see also CPL 100.05, 100.10). However, the matter may later be divested tosuperior court by means of an indictment (see CPL 170.20 [1]). Thus, prompt suspensionat a postindictment arraignment would apply only in an exceedingly rare case, such as where (asin this case) the local criminal court fails to conduct a hearing prior to the completion of thearraignment on the local criminal court accusatory instrument. There is nothing in the recordbefore us in this case to indicate that this situation is likely to recur.
Footnote 2: This is not to suggest that adistrict attorney could not comment in the event that defense counsel attempted to markedlyexpand the narrow scope and purpose of the Pringle hearing (see Matter ofVanderminden v Tarantino, 60 AD3d at 59-60). Nor do we suggest that a district attorney'spresence at a Pringle hearing is required.