93 A.D.2d 732 | N.Y. App. Div. | 1983
— Application pursuant to CPLR article 78 for an order in the nature of a writ of prohibition, prohibiting respondent Hornblass from presiding over a certain posttrial proceeding, unanimously denied and the petition dismissed, without costs and without disbursements. Sterling Johnson, Jr., Special Assistant District Attorney for the office of Prosecution, Special Narcotics Court for the City of New York, seeks an order of this court prohibiting the Hon. Jerome Hornblass, an Acting Justice of the Supreme Court of the State of New York from presiding over the posttrial proceedings in the case of People v Ernesto Insignares and Cesar Garay (Special Narcotics Indictment No. 5734-81). For the reasons hereinafter set forth the application is denied and the petition is dismissed. It appears that in response to allegations by the defendant Insignares that he had been sexually attacked by inmates during his postconviction confinement at Rikers Island, that he had not been confined in segregated facilities as the respondent Hornblass had ordered, nor was a suicide watch undertaken by the Department of Corrections’ personnel, as Hornblass had ordered, the respondent, upon the application of Insignares’ attorney, appointed Special Counsel from New York Civil Liberties Union “with reference to the possible violation of [Insignares] rights”; ordered that defendant be confined over the weekend at Bellevue Hospital so that a complete physical and mental examination could be conducted and upon learning that the defendant was at the Rikers Island hospital and not at Bellevue, visited defendant at Rikers to determine whether or not he was safely housed and “to see the entire conditions of the hospital as well as the [place] where he was held before”. On the basis of these and other events, including ascertaining that his order that Insignares be confined at Bellevue Hospital over the weekend had been countermanded by the Commissioner of Correction, who apparently took the position that the department routinely ignored orders of the court respecting the housing of inmates, reserving to itself the determination of the appropriate housing circumstances for inmates in its custody, respondent indicated that he would entertain appropriate motions made on behalf of Insignares, and hold a hearing as to the allegations made by the defendant respecting his mistreatment at Rikers Island. Defendant has, in the meanwhile, filed a postconviction motion to dismiss the indictment in the interest of justice relying heavily upon his alleged mistreatment at Rikers and upon assertions that he is psychologically unfit for imprisonment. This motion is pending before the respondent Hornblass. The People sought to have Hornblass recuse himself, asserting that while his good intentions were not in any way being questioned, his involvement in an “extrajudicial” capacity in the issues raised by Insignares’ motion, created at the very least an appearance of impropriety. The People also assert a probable need to call Hornblass as a witness during the course of the scheduled hearing