72 A.D.2d 850 | N.Y. App. Div. | 1979
Lead Opinion
Appeal from a judgment of the Supreme Court at Special Term, entered January 13, 1979 in Washington County, which denied petitioner’s application, in a proceeding pursuant to CPLR article 78, for an order prohibiting respondents from prosecuting the criminal action of People of the State of New York v Richard Hongisto in the Town Court of the Town of Fort Ann, Washington County. Petitioner, the then Acting Commissioner of the New York State Department of Correctional Services, instituted at the Great Meadow Correctional Facility in the Town of Fort Ann, Washington County, a "Family Reunion Program” whereby selected inmates may meet privately with their families in a specifically designated area on the prison grounds. A mobile home park was constructed within the prison walls and five mobile homes were placed therein to implement the program. Thereafter, an information, prepared by respondent Mercure, District Attorney of Washington County, was filed in the Town of Fort Ann, and charged petitioner with constructing and maintaining a mobile home park without first obtaining a permit as required by the town’s zoning ordinance. On October 20, 1978 petitioner commenced this proceeding in which an order was sought prohibiting respondents from prosecuting the criminal action. Special Term concluded that prohibition was not available as a remedy, and that even if it were, the court would deny relief on the merits. There must be a reversal. The preliminary question is whether prohibition lies as a remedy. As explained in La Rocca v Lane (37 NY2d 575, 578-579), "prohibition is available both to restrain an unwarranted assumption of jurisdiction and to prevent a court from exceeding its authorized powers in a proceeding over which it has jurisdiction”. Where, as here, ordinary proceedings would be inadequate to prevent the harm complained of, prohibition may be employed where it would furnish a more complete and efficacious remedy even though other methods of redress are technically available (Matter of Dondi v Jones, 40 NY2d 8, 14). We agree with petitioner that an alternative remedy such as a motion to dismiss or an appeal from an adverse determination would not be adequate under the circumstances herein to rectify the grievous harm and undo the indignity presented by the underlying criminal
Dissenting Opinion
Petitioner does not attack the jurisdiction of the Town Court of the Town of Fort Ann to hear and determine alleged zoning ordinance violations committed within its geographic limits, nor does he question the validity of the process used in charging him with such a violation. Distilled to essentials, his claim is that the court is about to proceed in excess of its authorized subject matter powers because the ordinance does not apply to actions undertaken by a State official in a governmental capacity. The majority accepts this reasoning and summarily terminates the pending criminal action. While we are inclined to agree that petitioner’s argument will ultimately prevail, we do not believe that relief by way of prohibition is warranted. Prohibition is an extraordinary remedy and, as the authorities relied upon by the majority note, it will issue only as a matter of discretion (Matter of Dondi v Jones, 40 NY2d 8, 13; La Rocca v Lane, 37 NY2d 575, 579). Assuming that the nature of the issue raised by petitioner is one properly reviewable in a prohibition proceeding, an examination of the facts underlying those authorities convinces us that his petition should be dismissed in the sound exercise of discretion. In Dondi (supra, pp 14-15), the petitioner had repeatedly moved to dismiss the accusatory instrument; over 30 other cases would be affected by the outcome of his challenge to tbe authority of the Special Prosecutor, and the prosecutor waived any claim that prohibition was unavailable. In La Rocca (supra, pp 581-582), the petitioner was not a party to any pending litigation and review of the asserted error by other means was not a realistic proposition. Here, petitioner, through his attorney, has entered a not guilty plea to a single and relatively minor criminal charge. He has taken no further defensive action in the trial court and, so far as the present record discloses, no similar prosecutions have been launched against him elsewhere. The majority says that ordinary proceedings would be inadequate to prevent the harm complained of, but it does not identify the harm or specify the inadequacy. If petitioner’s claim of personal immunity owing to the inapplicability of the ordinance is as strong as it appears, are we to assume that the Town Court would fail to recognize its merit on a simple motion to dismiss and speculate that such an error would also escape correction by appellate tribunals in the event of a conviction? Even though multiple prosecutions have not arisen, are we to surmise that their potential is great and that petitioner is unaware of actions for declaratory judgment? The answers, we submit, are obvious. Petitioner is requesting us to abort a trivial criminal matter based on a narrow "jurisdictional” point of limited importance. Furthermore, requiring him to press the issue in a routine fashion will cause no articulable "harm”. The motives of the prosecutor in choosing a criminal forum to test the legality of petitioner’s conduct may be
