| Matter of Soares v Carter |
| 2014 NY Slip Op 00409 [113 AD3d 993] |
| January 23, 2014 |
| Appellate Division, Third Department |
| In the Matter of P. David Soares, as District Attorney ofAlbany County, Respondent, v William A. Carter, as Judge of the City Court ofthe City of Albany, Appellant, and Colin Donnaruma et al., Respondents. (And AnotherRelated Proceeding.) |
—[*1] P. David Soares, District Attorney, Albany (Christopher D. Horn of counsel), for P.David Soares, respondent. Law Offices of Mark S. Mishler, Albany (Mark S. Mishler of counsel) and KindlonShanks & Associates, Albany (Kathy Manley of counsel), for Colin Donnaruma andothers, respondents. Kathleen M. Rice, Mineola, for New York State District Attorneys Association,amicus curiae.
Lahtinen, J.P. Appeal from that part of a judgment of the Supreme Court (Platkin,J.), entered July 11, 2013 in Albany County, which granted petitioner's application, in aproceeding pursuant to CPLR article 78, for a writ of prohibition.[*2]
In June 2012, City of Albany police arrested fourindividuals—respondents Colin Donnaruma, Daniel Morrissey, Eric Catine andTimothy Holmes (hereinafter collectively referred to as the defendants)—chargingeach with the violation of disorderly conduct and one of the four was also charged with amisdemeanor of resisting arrest. After arraignment and various proceedings, includingpetitioner's[FN1] declaration of readiness for trial, petitioner offered each defendant a six-monthadjournment in contemplation of dismissal. Respondent City Court Judge of the City ofAlbany (hereinafter respondent) refused to accept such pleas unless combined withcommunity service, which the defendants rejected. In September 2012, the defendantsfiled a motion to dismiss because, by such time, petitioner had decided not to continueprosecuting the cases. Respondent denied the motion, stating that petitioner had pursuedand participated in the prosecution of the cases to a point where he could not, consistentwith the Criminal Procedure Law (hereinafter CPL), simply walk away from the cases,and further that the defendants had failed to supply an appropriate statutory basis fortheir dismissal motion. Respondent indicated that petitioner's failure to appear atsubsequent court dates in the defendants' cases could result in the court resorting to itscontempt powers.
Thereafter, petitioner appeared in court for all matters related to the defendants'cases, but took no action to advance the cases or oppose the defendants' subsequentrequest for dismissal, which respondent denied. At a May 2013 suppression hearing,petitioner stated that no witnesses would be called or proof presented. During a lengthydiscussion between respondent and petitioner, respondent told petitioner that simplyappearing did not fulfill his obligation and warned that his willful refusal to participatecould result in the court holding him in contempt. The hearings as to all defendants werethen adjourned for one week.
Shortly before the May 2013 suppression hearing appearance, the defendants hadcommenced a CPLR article 78 proceeding seeking to require respondent to dismiss theircases and prohibit him from compelling petitioner to prosecute the cases. Petitionercommenced a CPLR article 78 proceeding immediately after the suppression hearingappearance seeking to prohibit respondent from ordering him to call witnesses underthreat of contempt at the adjourned suppression hearings. Supreme Court considered thepetitions together and rendered a thorough written decision (Matter of Donnaruma v Carter,41 Misc 3d 195 [2013]) in which it dismissed the defendants' petition, but grantedpetitioner's petition to the extent of prohibiting respondent from requiring petitioner tocall witnesses or put in proof at the suppression hearings. Respondent appeals.
Respondent first contends that Supreme Court based its decision upon an incorrectfactual determination that he had ordered petitioner to call witnesses at the suppressionhearing under threat of contempt. While respondent did not make such a direct statementin one sentence, review of the record supports Supreme Court's determination. Forexample, at the suppression hearing, respondent stated that petitioner was ignoring hisprior order by not calling witnesses, he characterized petitioner's position as willfullyrefusing to participate, and added that, if petitioner maintained his position, one of theoptions available was to hold him in contempt. Statements made in the course of aconversational exchange may not reflect a position with the same exactitude as whengiven the opportunity to write, reflect and edit, nonetheless it was appropriate forSupreme Court to ascribe the clear meaning to the words used during the colloquy; andthose words suggest that petitioner would be held in contempt if he did not call [*3]witnesses at the adjourned suppression hearings.
The CPL does not mandate that a district attorney call witnesses at a suppressionhearing (see CPL 710.60), and Supreme Court succinctly set forth some of thepotential serious problems that would arise if a trial court required a district attorney todo so (41 Misc 3d at 211). Since requiring a prosecutor to call witnesses to avoid beingheld in contempt would exceed the trial court's authority and impact the entireproceeding, we are unpersuaded that Supreme Court's narrowly tailored order ofprohibition constituted an abuse of its discretion (see Matter of Holtzman vGoldman, 71 NY2d 564, 569 [1988]; Matter of Farrell v LaBuda, 94 AD3d 1195, 1197 [2012],lv denied 19 NY3d 808 [2012]; Matter of Briggs v Halloran, 12 AD3d 1016, 1017 [2004];Matter of Cantwell v Ryan, 309 AD2d 1042, 1043 [2003], affd 3 NY3d626 [2004]).
Next, respondent argues that Supreme Court erred in issuing a judgment prohibitinghim from exercising contempt powers. Supreme Court's judgment is not so sweeping.The court merely prohibited respondent from "requir[ing] [petitioner] to call witnesses orput on proof at the suppression hearings in the criminal cases pending against [thedefendants]" (41 Misc 3d at 215). This judgment does not, as theorized by respondent,lead to the conclusion that respondent has been stripped of his power to require petitionerto comply with the CPL. Supreme Court's judgment does not directly diminishrespondent's contempt power nor does it purport to circumscribe whatever powerrespondent may have to require compliance with the governing statute. However, sincethe CPL does not require petitioner to call witnesses or put on proof at the suppressionhearing, and given a district attorney's broad discretion—implicating separation ofpowers—in determining the manner to proceed in a criminal case (see Matterof Holtzman v Goldman, 71 NY2d at 573-574), respondent cannot mandate suchaction under threat of contempt. It is a simple, narrow, potentially ultra vires action that isbeing prohibited by Supreme Court's judgment.
Respondent urges that he is merely trying to get these cases resolved in a mannerconsistent with the CPL and that petitioner's conduct has left him with few options(see Matter of Cloke v Pulver, 243 AD2d 185, 189 [1998]). Disposition of thesecases should not be as complicated or time consuming as they have become. A districtattorney has "unfettered discretion to determine whether to prosecute a particularsuspect" (Matter of Cantwell v Ryan, 309 AD2d at 1042). Once prosecution ofthe case is pursued and pending, the district attorney remains "presumptively the bestjudge of whether a pending prosecution should be terminated" (United States vCowan, 524 F2d 504, 513 [1975], cert denied sub nom. Woodruff v UnitedStates, 425 US 971 [1976]); nonetheless, at such point dismissal cannot properly bedone unilaterally on the sole whim of the district attorney (see People v Extale, 18 NY3d690, 695 [2012]). Significantly, a primary purpose for this limitation is to protect adefendant by preventing an abuse of power by a district attorney (see People vDouglass, 60 NY2d 194, 202 [1983]), such as could occur "through a prosecutor'scharging, dismissing without having placed a defendant in jeopardy, and commencinganother prosecution at a different time or place deemed more favorable to theprosecution" (United States v Ammidown, 497 F2d 615, 620 [1973]; seeRinaldi v United States, 434 US 22, 29 n 15 [1977]). Unless the district attorney hasengaged in egregious misconduct violative of the public interest, the limitation generallywill not create difficulty in obtaining swift dismissal where a defendant also desiresdismissal, since various procedures are available for disposing of a pending criminalcase.
For example, a motion to dismiss in the interest of justice can be made (seeCPL 170.40; see also CPL 210.40). Such motion can be initiated by a defendant,a district attorney, or even by [*4]the court before whichthe case is pending (see CPL 170.40 [2]; Peter Preiser, Practice Commentaries,McKinney's Cons Laws of NY, Book 11A, CPL 170.40 at 100). Generally, a defendantmoves for such relief and the People are opposed (see e.g. People v Banks, 100 AD3d 1190, 1190 [2012],lv denied 20 NY3d 1059 [2013]), but occasionally the People will make themotion and the defendant will be opposed (see People v Extale, 18 NY3d at693). The parties have not cited to authority in this state where both the People and thedefendant wanted dismissal, but a court's refusal to permit dismissal was upheld. This isnot to say that there might not be a reason for such court action, but such cases would berare. A prosecutor's unopposed motion to dismiss could be denied, for example, ifmotivated by bad faith, such as the prosecutor accepting a bribe, acting out of animustoward the victim or other conduct that is clearly contrary to manifest public interest(see e.g. United States v Smith, 55 F3d 157, 159 [1995]; 4 Wayne R. LaFave etal., Criminal Procedure § 13.3 [c] [3d ed]). If such egregious conduct wereimplicated, a court could also seek to have the prosecutor removed by the Governor andreplaced with the Attorney General (see NY Const, art XIII, § 13;Executive Law § 63 [2]; Matter of Cloke v Pulver, 243 AD2d at 189).Here, respondent acknowledges in his brief on appeal that "[n]o one suggests impropermotives of petitioner in this case."
Although there are statutory criteria that must also be addressed as part of a motion todismiss in the interest of justice (see CPL 170.40 [1] [a]-[j]), the criteria includea catchall (see CPL 170.40 [1] [j]), and there is flexibility in the manner in whichthe criteria are weighed and applied (see People v Rickert, 58 NY2d 122, 128,132 [1983]). The Court of Appeals has observed that "the need to show that the ultimatereasons given for the dismissal are both real and compelling almost inevitably will meanthat one or more of the statutory criteria, even if only the catchall (j), will yield to readyidentification" (id. at 128). Given that petitioner and the defendants desiredismissal of these minor low-level charges, respondent denies knowledge of anyill-motive by petitioner and there is no assertion of nefarious conduct subverting justiceby petitioner, it seems quite unlikely that an appropriate considering and weighing of thestatutory interest of justice criteria would nonetheless require that these cases continue.
Another, but more time consuming, option is similar to the one ostensibly embarkedupon by petitioner.[FN2] Consistent with the CPL, a district attorney can stipulate at a suppression hearing to thegranting of a defendant's motion (see CPL 710.60 [2] [b]).[FN3] Further, the failure at an eventual trial to produce any inculpatory proof would result indismissal and, since re-[*5]prosecution would then beprecluded (see e.g. CPL 40.20, 40.30), the primary purpose for abolishing nolleprosequi would not be implicated (see e.g. United States v Ammidown, 497 F2dat 620). If—unlike here—a trial judge reasonably suspected that bad faithmotivated a district attorney's action, the court could (as we have previously discussed)seek Executive intervention to replace the district attorney. Absent such unusualcircumstance, the district attorney's discretion ultimately will be judged at the ballot box.
We need not belabor the point any further. Where a district attorney decides not topursue a pending case and it is not one of the rare instances where the defendant objects,or even rarer occurrences where bad faith is implicated, then avenues exist under theCPL for dismissal—some of which are more respectful than others of thetaxpayers who are funding the Judiciary and the prosecutor (as well as often the defensecounsel via assignment).
Stein, McCarthy and Garry, JJ., concur. Ordered that the judgment is affirmed,without costs.
Footnote 1: The reference topetitioner herein includes assistant district attorneys who acted on petitioner's behalf.
Footnote 2: Petitionerinappropriately indicates that interest of justice dismissal was not pursued first since priorexperience with respondent revealed that the motion would not have been granted. Everycase, however, is unique and, before venturing down the much more time consumingpath chosen, prudence would seem to have dictated at least an effort at the economicalcourse. Indeed, respondent appears to have invited such a motion in these cases.
Footnote 3: The transcript of thesuppression hearing does not indicate that petitioner stipulated to the granting of thedefendants' motion. Rather petitioner's response to respondent's request to proceed wassimply that petitioner had no intention of calling witnesses and had made a decision todecline prosecution.