| Matter of Hock v Brennan |
| 2013 NY Slip Op 06004 [109 AD3d 994] |
| September 25, 2013 |
| Appellate Division, Second Department |
| In the Matter of Steve Hock, Petitioner, v MichaelBrennan et al., Respondents. |
—[*1] Eric T. Schneiderman, Attorney General, New York, N.Y. (Michael J. Siudzinski ofcounsel), for respondent Michael Brennan. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Dianne E. Malone and Ann N.Bordley of counsel), for respondent People of the State of New York.
Proceeding pursuant to CPLR article 78, in effect, in the nature of prohibition toprohibit the respondent Michael Brennan, a Justice of the Supreme Court, Kings County,from enforcing an order dated April 8, 2013, which vacated an order of the same courtdated May 24, 2011, staying the execution of a judgment rendered against the petitioneron May 19, 2011, in a criminal action entitled People v Hock, under KingsCounty indictment No. 76512/08.
Adjudged that the petition is granted, on the law, without costs or disbursements, andthe respondent Michael Brennan, a Justice of the Supreme Court, Kings County, isprohibited from enforcing the order dated April 8, 2013, which vacated an order of thesame court dated May 24, 2011, staying the execution of a judgment rendered against thepetitioner on May 19, 2011, in a criminal action entitled People v Hock, underKings County indictment No. 76512/08.
On May 19, 2011, the Criminal Court, Kings County, rendered a judgmentconvicting the petitioner of 85 misdemeanor counts of violating Agriculture and MarketsLaw §§ 353, 356 and 359 in connection with his treatment of 69 cats in hiscare. The petitioner was sentenced to 60 days of incarceration, plus a period of threeyears of probation. In an order dated May 24, 2011, Justice Michael Brennan of theSupreme Court, Kings County, granted the petitioner's motion pursuant to CPL 460.50 tostay the execution of the judgment pending the determination of his appeal to theAppellate Term of the Supreme Court for the Second, Eleventh, and Thirteenth JudicialDistricts (hereinafter the Appellate Term), and to release him on his own recognizance(hereinafter ROR). As a condition of the stay and ROR, the petitioner was "prohibitedfrom owning, harboring, having custody or control over any animals" until the matterwas resolved.
Thereafter, in orders dated September 19, 2011, December 9, 2011, and April 16,2012, respectively, the Appellate Term granted the petitioner's motions pursuant to CPL460.50 (4) to continue the stay of execution of the judgment, pending the determinationof the appeal, on the condition that the appeal was timely perfected. The petitioner timelyperfected his appeal on July 6, 2012.[*2]
On March 27, 2013, the People moved by orderto show cause, before Justice Brennan in the Supreme Court, to vacate the stay ofexecution of the judgment and to revoke the petitioner's ROR that had been granted inthe order dated May 24, 2011. The People alleged that the petitioner violated thecondition of release that he not own, harbor, or have custody or control over any animalspending the appeal. Justice Brennan directed a hearing on the motion, after which heissued an order dated April 8, 2013, granting the People's motion to vacate the stay ofexecution of the judgment, based on his determination that the petitioner violated thecondition that he not have custody or control over any animals. The petitionercommenced this proceeding pursuant to CPLR article 78 in the nature of prohibition toprohibit Justice Brennan from enforcing the order dated April 8, 2013, on the ground thatJustice Brennan, as a trial justice of the Supreme Court, lacked jurisdiction to entertainthe People's motion to vacate the stay of execution of the judgment and to revoke thepetitioner's ROR that had been granted in the order dated May 24, 2011.
"Because of its extraordinary nature, prohibition is available only where there is aclear legal right, and then only when a court—in cases where judicial authority ischallenged—acts or threatens to act either without jurisdiction or in excess of itsauthorized powers" (Matter of Holtzman v Goldman, 71 NY2d 564, 569 [1988]).
CPL 460.50 (4) provides for the automatic termination of an order staying theexecution of a judgment pending appeal after 120 days if the appeal has not beenperfected. However, this automatic termination does not apply where an intermediateappellate court has extended the time to perfect the appeal beyond 120 days and, "uponapplication of the defendant, expressly ordered that the operation of the order continueuntil the date of the determination of the appeal or some other designated future date oroccurrence" (CPL 460.50 [4]). Thus, according to the express terms of the statute, after120 days, either an order granting a stay expires, or the intermediate appellate court, bydirecting that the operation of the order continue, obtains jurisdiction over the stay.Correspondingly, where the court that issues an order granting a stay pending appeal isnot an intermediate appellate court, that court does not retain any authority over the stayafter the initial 120-day period. Where, as here, an intermediate appellate court exercisesits power to continue an order granting a stay, any motion to revoke the underlying orderis required to be made in that court, which may then remit the motion to the issuing courtfor a hearing if necessary.
Here, the Appellate Term, an intermediate appellate court, exercised its statutoryauthority to continue the stay of execution of the judgment pending appeal after theinitial 120-day period had lapsed. Accordingly, that court had sole jurisdiction over thestay, and Justice Brennan acted in excess of jurisdiction in entertaining the People'smotion and vacating the order dated May 24, 2011. Thus, we conclude that the petitionerestablished a clear legal right to have only the Appellate Term consider any request bythe People to revoke the stay, pending appeal, of the execution of the judgment ofconviction rendered against him. We, thus, grant the petition. Angiolillo, J.P., Dickerson,Sgroi and Hinds-Radix, JJ., concur.