Neal v. WhiteNeal v. White
Nardelli, J.
This is a CPLR article 78 proceeding, in the nature of prohibition and mandamus, in which petitioner Shamone Neal seeks to vacate and prohibit the enforcement of a decision and order of the Supreme Court, New York County (Renee White, J.), entered on or about December 6, 2006, which, inter alia, denied petitioner‘s motion to dismiss the indictment against her.
Initially, petitioner was arraigned in Manhattan Criminal Court, on February 9, 2006, on charges of assault in the second degree (
The current indictment arises out of petitioner‘s actions on August 14, 2006, when it is alleged that at approximately 8:00 p.m., she entered her sister‘s apartment, hit one child in the chest, shoved the other, and left the apartment with both children after the Police Department was called. The People contend that a citywide search ensued for more than 24 hours until the children returned to petitioner‘s sister‘s apartment, without petitioner, at 10:15 p.m. the following evening. The children reported that petitioner had accompanied them on a bus to a stop approximately one block from the apartment, where she had instructed them to get off the bus and walk home. The children stated that petitioner remained on the bus in order to аvoid the police.
Petitioner was subsequently apprehended in the Bronx and was arraigned on a felony complaint on August 16, 2006, charging her with burglary in the second degree, custodial interference in the first degree, criminal contempt in the second degree, reckless endangerment in the second degree, and endangering the welfare of a child. The evidence was thereafter presented to a grand jury on August 22, 2006, which voted an indictment charging petitioner with one count of burglary in the second degree, two counts of custodial interference in the first degree, four counts of criminal contempt in the second degree, and four counts of endangering the welfare of a child.
Petitioner filed an omnibus motion on November 1, 2006, alleging, inter alia, that the indictment should be dismissed because the order of protection, upon which certain charges in the indictment are predicated, was “stale” at the time of the conduct which gave rise to those charges. Petitioner‘s contentions are based upon the theory that, pursuant to
It is settled that prohibition* is an extraordinary remedy which lies only where a clear legal right to such relief exists, and only when a сourt “acts or threatens to act either without jurisdiction or in excess of its authorized powers” (Matter of Holtzman v Goldman, 71 NY2d 564, 569 [1988]; see also Matter of Lungen v Kane, 88 NY2d 861, 862 [1996]). Further, it is available only when a court exceeds its jurisdiction in a manner which implicates the legality of the proceeding itself (Matter of Johnson v Price, 28 AD3d 79, 82 [2006]; Matter of Hirschfeld v Friedman, 307 AD2d 856, 858 [2003]). Indeed, even if an act in excess of power is perceived and prohibition lies, the remedy is not granted as of right, but only in the sound discretion of the reviewing court (Matter of Holtzman v Goldman, 71 NY2d at 569; Matter of Rush v Mordue, 68 NY2d 348, 354 [1986]).
It is also beyond cavil that prohibition is ”never available merely to correct or prevent trial errors of substantive law or procedure, however grievous” (La Rocca v Lane, 37 NY2d 575, 579 [1975], cert denied 424 US 968 [1976] [emphasis added]; see also Matter of Hirschfeld v Friedman, 307 AD2d at 858), because “[t]he orderly administration of justice requires that correction of litigation errors merely be left to the ordinary channels of appeal or review. Otherwise one would erect an additional avenue of judicial scrutiny in a collateral proceeding and thus frustrate the statutory or еven constitutional limits on review” (La Rocca v Lane, 37 NY2d at 579; see also Matter of Rush v Mordue, 68 NY2d at 353 [“[u]se of the writ is, and must be, restricted so as to prevent incessant interruption of pending judicial proceedings by those seeking collateral review of adverse determinations made during the course of those proceedings. Permitting liberal use of this extraordinary remedy so as to achieve, in effect, premature appellate review of issues properly reviewable in the regular appellate process would serve only to frustrate
It is our view, in light of the foregoing, that a writ of prohibition does not lie for several reasons. Initially, petitioner excogitates that the original criminal complaint, and the TOP, became “stale” prior to the purported acts which are the subject of the current indictment and, therefore, Supreme Court acted outside its jurisdiction in denying the motion. These arguments, however, are readily reviewable on direct appeal and are not the proper subject of an article 78 proceeding. Even if petitioner were correct, only part of the current indictment would be open to dismissal, specifically the charges arising out of her alleged violation of the TOP, rendering this the type of “incessant interruption of pending judicial proceedings” (Matter of Rush v Mordue, 68 NY2d at 353) which the Court of Appeals has circumscribed. In addition, it has been held that the ordeal of a criminal trial, and the possibility of a conviction are, by themselves, insufficient to warrant the use of a writ (Matter of Rush v Mordue, 68 NY2d at 354; Matter of Dondi v Jones, 40 NY2d 8, 14 [1976]), a point esрecially pertinent herein as it appears a criminal trial on the counts not arising out of the alleged violations of the TOP would occur in any event. Nor can petitioner establish that the “legality of the proceeding itself” is in question for the very same reason. Lastly, and not to belabor the point, but even if prohibition did lie to the extent the TOP is “stale,” we would decline to exercise our discretion (see Matter of Holtzman v Goldman, 71 NY2d at 569; Matter of Rush v Mordue, 68 NY2d at 354) and issue such a writ at this juncture because of the additional charges laid out in the indictment which are unrelated to the TOP and which still must be addressed by Supreme Court.
Petitioner‘s reliance on People v Bleau (276 AD2d 131 [2001]) is misplaced, for in that matter, the court specifically held that “[o]nce a defendant is acquitted or sentenced . . . the criminal action is no longer pending and . . . the temporary order of protection becomes a nullity” (id. at 133 [сitation omitted]). Here, petitioner has been neither acquitted nor sentenced and while the original criminal complaint and TOP may very well have been subject to dismissal when petitioner elected to forcibly remove her children from her sister‘s apartment, they were, in fact, still pending and, accordingly, Supreme Court retained jurisdiction and the charges arising out of the purported violation of the TOP are not a nullity (People v Scott, 2 AD3d 653 [2003], lv denied 2 NY3d 765 [2004]).
Finally, since petitioner has failed to demonstrate a clear legal right to the relief sought, mandamus will also not lie (see Matter of Legal Aid Socy. of Sullivan County v Scheinman, 53 NY2d 12, 16 [1981]; Matter of National Equip. Corp. v Ruiz, 19 AD3d 5, 15 [2005]).
Accordingly, the petition should be denied and the proceeding dismissed, without costs.
Catterson, J. (dissenting). In this CPLR article 78 proceeding, petitioner seeks relief in the nature of prohibition and mandamus. Specifically, petitioner seeks to prohibit enforcement of the written decision of Hon. Renee White, Supreme Court of the State of New York, Criminal Term, Part 62, entered on or about December 6, 2006, denying petitioner‘s motion to dismiss the indictment against her and directing her to trial on the indictment.
Under the indictment (No. 4341/06), petitioner is charged with one count of burglary in the second degree, two counts of custodial interference in the second degree, four counts of criminal contempt in the second degree and four counts of endangering the welfare of a child. The charges arise out of petitioner‘s alleged violation of a temporary order of protection (TOP) issued by New York County Criminal Court, Part F, during the pendency оf a prior criminal action against petitioner.1
Petitioner was informed that her felony complaint would be automatically dismissed as “stale” in Part 2F of the Criminal Court, New York County on August 24, 2006 if the District Attorney did not take any action on it by that date.2 The notice that was issued to petitioner on May 22, 2006 read in relevant part: “Your docket has been adjourned to August 24, 2006 and Your Appearance is Not Required on the Adjourned Date. If no action is taken by the District Attorney prior to the above date, the docket will be dismissed and sealed.”
On August 16, 2006, petitioner was arrested for the alleged violation of the TOP after she went to her sister‘s aрartment and took her children out on an unsupervised trip two days earlier. Petitioner was indicted on the charges stemming from the alleged violation on August 22nd. Petitioner filed an omnibus motion before the respondent on November 1, 2006, seeking to dismiss the indictment on the grounds of constitutional infirmities in the statutory scheme that permitted the TOP to survive the effective speedy trial dismissal date of the felony complаint. On or about December 6, 2006, respondent issued a written decision denying the motion to dismiss and directing the case to trial. Petitioner then filed this article 78 petition.
Petitioner asserts that the motion court should be enjoined from directing the indictment to trial since it is based on alleged violations of a TOP that had for all intents and purposes expired at the time of the alleged violations. Further, petitioner
Respondent District Attоrney argues that an article 78 proceeding in the nature of prohibition is not a proper vehicle for appealing this issue, and that the issue may be resolved on direct appeal following an adverse verdict in the underlying criminal trial. Furthermore, the court‘s order states that petitioner may raise the issue as a defense at trial.
As a threshold matter, I agree that prohibition is an “extraordinary” remedy and should not generally be used where an issue may be reviewed on appeal or where the “grievance can be redressed by ordinary proceedings at law or in equity.” (Matter of Lee v County Ct. of Erie County, 27 NY2d 432, 437 [1971] [citations omitted], cert denied 404 US 823 [1971].) Nor should it be used where an article 78 proceeding appears to be a substitute for an unauthorized interlocutory appeal. (See Matter of State of New York v King, 36 NY2d 59, 62 [1975].)
Nevertheless, the remedy of prohibition is designed to stop and control affirmative acts of a court or public officer which are done in excess of authorized powers. (See Matter of Rush v Mordue, 68 NY2d 348, 352-353 [1986].) Moreover, prohibition may lie where “the claim is substantial, implicates a fundamental constitutional right, and where the harm caused . . . could not be adequately redressed through the ordinary channels of appeal.” (Id. at 354; see also Matter of Murtagh v Leibowitz, 303 NY 311 [1951] [criminal action removed from a court when crime could not have been committed in the geographical jurisdiction]; Matter of Kraemer v County Ct. of Suffolk County, 6 NY2d 363 [1959] [where defendants were to be prosecuted for a crime for which they could not be constitutionally tried]; Matter of Lee v County Ct. of Erie County, supra.)
While I agree that petitioner could raise this issue on direct appeal (see People v Bleau, 276 AD2d 131 [2001]), nevertheless if a determination can be made that, as petitioner claims, she was charged with a crime that simply could not have been committed by her, then it would be, at the very least, a waste of judicial resources to require petitioner to go to trial. Moreover, if indeed, petitioner could not have committed the crime, then I
Petitioner correctly asserts that the prior criminal action was no longer effectively pending in Criminal Court on August 9, 2006. Pursuant to
In the instant case, the People were not ready for trial because they did not convert the felony complaint into an indictmеnt, and so were without a jurisdictionally sufficient instrument. (See People v Cruz, 123 Misc 2d 316 [1984].) As of August 9, 2006, the People had not taken any grand jury action and so could not obtain an indictment by the requisite time. Additionally, an indictment alone is not enough for the People to be deemed ready for trial if arraignment of the defendant is not possible within the statutory period. (People v England, 84 NY2d 1, 5, [1994] [arraignment is an “elemental prerequisite to trial readiness“]; see also People v Goss, 87 NY2d 792, 794 [1996].)
Thus, with no indictment or arraignment of the petitioner by August 9, 2006, the criminal action was effectively no longer pending. This necessarily rendered the August 24, 2006 calendar date set for dismissal arbitrary, irrelevant and meaningless.
Because of the statutory framework, while petitioner could have moved to dismiss an indictment returned on August 9, 2006, she cannot move to dismiss a felony complaint until 12 months after arraignment. There is no provisiоn in
However, as petitioner сorrectly asserts, without any further prosecutorial action by August 9, 2006, the case against her could no longer be pending or restored to the calendar given the speedy trial statute. Significantly, respondents do not claim that any such criminal action was pending or could have been pending on August 9, 2006. Nor does either respondent counter petitioner‘s assertion that the case against her wаs effectively dismissed as of August 9, 2006. Thus, it is uncontroverted that the court had no jurisdiction over petitioner as of August 9, 2006.
In this case, therefore, in my opinion the crucial question arises as to whether a temporary order of protection can survive beyond the date where all parties agree that a criminal action is no longer pending. Case law is thin on this issue, although People v Bleau (276 AD2d 131 [2001], supra) is instructive. In that case, defendant аrgued that a temporary order of protection expired automatically upon the termination of the criminal action from which it arose. Defendant was arrested stemming from an incident involving his ex-girlfriend. As a result, a TOP was issued, scheduled to expire on October 1, 1998. On August 11, 1998, defendant pleaded guilty to a charge of disorderly conduct and harassment of his girlfriend. On September 2, 1998, he was arrested for violating thе TOP by contacting the ex-girlfriend. On appeal, defendant argued that his guilty plea terminated the criminal action upon which the TOP had been issued, and therefore the TOP had expired automatically. The appellate court agreed with defendant stating: “the critical factor in issuing a temporary order of protection under
In applying the foregoing rationale to the instant case, since both respondents concede that no criminal action against petitioner was pending as of August 9, 2006, I find that the TOP was a nullity as of that date, and therеfore, petitioner could not have violated the TOP on August 14, 2006.
Consequently, I believe the Criminal Court, Part F exceeded its authority in extending the TOP to an arbitrary date that
Saxe, J.P., Gonzalez and Sweeny, JJ., concur with Nardelli, J.; Catterson, J., dissents in a separate opinion.
Petition denied and the proceeding dismissed, without costs.