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IN RE: the Application of Hilary A. BEST, Petitioner, v. Harold ADLER, Judge, Bronx County Criminal Court, Respondent.
Respondent Judge Harold Adler moves to vacate the stay of petitioner Hilary A. Best's underlying criminal case pursuant to CPLR § 6314 on the grounds that the stay does not serve the ends of justice and petitioner does not satisfy the requirements for a stay. In addition, respondent asks this Court to decide the merits of petitioner's Article 78 proceeding and issue a judgment denying the petition and dismissing the proceeding in its entirety. Petitioner opposes the motion and cross-moves for summary judgment on the issues raised in his Article 78 petition.
Petitioner is a defendant in a criminal case pending in Criminal Court, Bronx County. On May 19, 2012, while incarcerated at Rikers Island, petitioner allegedly threw a bowl of soup onto a New York City Corrections Officer. A criminal complaint was filed in connection with this incident, charging petitioner with Assault in the Third Degree (NY Penal Law (“PL”) § 129.00 ) and Harassment in the Second Degree (PL § 240.26 ). On August 27, 2012, petitioner was arraigned on these charges and his application to proceed pro se was granted. Thereafter, petitioner filed six consecutive motions seeking to dismiss the criminal case, all of which were denied.
On October 31, 2016, the pending criminal case was transferred to Judge Adler, and the parties appeared before Judge Adler in order to select a trial date. On that date, petitioner continued to raise jurisdictional arguments that had been previously rejected on numerous occasions. This led to a discussion concerning petitioner's right to represent himself. Judge Adler warned that petitioner would forfeit his right to proceed pro se if he continued to raise arguments that there previously determined. Judge Adler further instructed petitioner to respond to the court's questions directly and explained that he would be held to the same standard as an attorney. As Judge Adler sought to proceed with the conference, petitioner interjected to say that he had an objection even though the court had not taken any action. A discussion concerning a potential plea deal ensued. Judge Adler then asked petitioner if he was willing to take a plea deal. Instead of answering the question, petitioner again repeated that the court did not have jurisdiction. After several unsuccessful attempts to get an answer from petitioner about whether he would accept a plea, Judge Adler warned that he would revoke petitioner's pro se status if petitioner continued not to respond to direct questions from the court. Petitioner provided an answer, but based it on his belief that the court lacked jurisdiction. Judge Adler then stated that he was going to have an attorney appointed to petitioner. Following petitioner's unsuccessful requests for a two-week adjournment to submit papers on the jurisdictional issue, Judge Adler discussed the option of having an 18-B attorney to assist the petitioner if the case went to trial:
“Judge Adler: You can still represent yourself but I think it's more appropriate for you to have counsel or at least have an attorney in the courtroom that you can consult with because if it goes to trial, evidence comes in, I can't help you in all the intricacies involving what is admissible, what's not admissible, complex issues of hearsay and a whole variety of evidence that might be prejudicial to you.
Mr. Best: The defense only requests that if it becomes apparent that the witness is testifying falsely, that they be subject to immediate arrest. (respondent's exhibit 19 at 11-12)”
Judge Adler believed this response indicated that petitioner was unable to represent himself and decided to adjourn the case in order to appoint an 18-B attorney as petitioner's advisor. Petitioner made an additional request to submit papers concerning jurisdiction and there were further discussions involving whether the charge for Assault in the Third Degree would be reduced to Attempted Assault in the Third Degree, allowing for a bench trial. While the People agreed to reduce the charge, petitioner objected and stated that he wanted “a jury trial so he could control the outcome of the trial” (respondent's exhibit 19 at 16-17). Judge Adler reiterated, as before, that petitioner could forfeit his right to represent himself if he or his arguments were non-responsive or inappropriate. Notwithstanding this, petitioner made another request to submit papers showing that the court lacked jurisdiction. Judge Adler again reminded petitioner that those issues had already been decided and that the court has jurisdiction.1
On November 14, 2016, Judge Adler assigned an attorney advisor as stand-by counsel to assist petitioner during the trial. However, Judge Adler repeated that petitioner could forfeit his right to represent himself if he continued to assert that the court lacked jurisdiction. Despite this warning and countless others, petitioner presented a letter challenging the court's jurisdiction and accusing Judge Adler and other Criminal Court justices of corrupt judicial practice. Given petitioner's letter, Judge Adler found that petitioner forfeited his right to represent himself and assigned stand-by counsel as petitioner's attorney. The case was adjourned to December 6, 2016 2 and subsequently adjourned again to January 17, 2017 for trial.
Petitioner thereafter commenced the instant Article 78 proceeding in the Supreme Court, Bronx County, by order to show cause, against Judge Adler, challenging the propriety of Judge Adler's determination that petitioner had forfeited his right to proceed pro se. The court granted petitioner's request for a temporary restraining order staying the underlying criminal case pending “the hearing” of the Article 78 proceeding. Subsequent to this action being filed, Judge Adler recused himself from the underlying criminal case. On March 13, 2017, the parties appeared before Justice Alison Y. Tuitt in Bronx County, for oral argument.3 Ultimately, the instant proceeding was assigned to this Court by Administrative Transfer Order dated August 2, 2017.4
Relief Requested in Petition
Petitioner, appearing herein pro se, commenced the instant Article 78 proceeding asking this Court to review the propriety of Judge Adler's determination that petitioner forfeited his right to proceed pro se in the underlying criminal matter. Petitioner ostensibly seeks a writ of prohibition that would enjoin Judge Adler from depriving petitioner of his right to represent himself, or a writ of mandamus directing Judge Adler to overturn the determination. Petitioner argues that Judge Adler acted arbitrarily and capriciously in forfeiting his constitutional right to self-representation and contrary to law as Judge Adler did not state a legal basis for revoking said right. Petitioner further asserts that the Criminal Court violated the Rules of Judicial Conduct when denying his motions by being unfaithful to and ignoring the law, which he contends “required dismissal of the criminal proceeding.” Petitioner also raises the same arguments concerning the criminal court's lack of subject matter jurisdiction, which he had previously raised in his motions to dismiss the underlying criminal complaint.
In opposition, respondent contends that the determination of whether a pro se criminal defendant has forfeited the right to self-representation is a discretionary determination, with an adequate remedy in the form of an appeal, and therefore neither a writ of mandamus nor prohibition is appropriate. Respondent argues he properly exercised his discretion when on the eve of trial petitioner continued to raise the same jurisdictional issues that had been rejected on numerous occasions. Respondent claims that petitioner's countless motions are nothing more than calculated efforts to unreasonably delay the trial. Having repeatedly warned petitioner about raising inappropriate arguments such as lack of jurisdiction and the immediate arrest of witnesses, respondent states that he was justified in his determination. Respondent asserts that petitioner's persistence on raising the same arguments that were rejected numerous times is comparable to other instances in which courts have found that a defendant forfeited his right to proceed pro se (citing People v Finkelstein, 28 NY3d 345, 349 ; People v Wilder, 275 AD2d 268, 268 [1st Dept 2000] ). With respect to petitioner's assertions that Judge Adler lacks subject matter jurisdiction, respondent emphasizes that these issues have been litigated and adjudicated by the Supreme Court, Bronx County, and thus is barred from being re-litigated in this Article 78 proceeding.
Motion to Vacate the Stay of Criminal Proceedings
With respect to the motion to vacate, respondent restates much of what is contained in his answer, arguing that the stay should be vacated because it no longer serves the ends of justice and petitioner does not satisfy the requirements for a preliminary injunction or temporary restraining order. Specifically, respondent asserts that petitioner is unlikely to succeed on the merits and has not shown irreparable harm. Additionally, respondent claims that petitioner has not shown that balancing of the equities is in his favor.
In response, petitioner submits an affidavit in opposition and also purports to cross-move for summary judgment.5 The Court notes that petitioner failed to serve or file a notice of cross-motion (see CPLR § 2215). As such, the instant request for relief is not a formal cross motion, as contemplated by CPLR § 2215. In the absence of a cross motion, the courts should not consider an “informal request” for relief (see New York State Div. of Human Rights v Oceanside Cove II Apartment Corp., 39 AD2d 608, 609 [2d Dept 2007] [request to dismiss based on lack of personal jurisdiction denied absent cross-motion] ). The bulk of petitioner's purported cross-motion is duplicative of his petition in that he again challenges the verification of the accusatory instrument and asserts that the speedy trial time has run. Notably, petitioner does not address any of the arguments set forth by respondent concerning the requirements necessary for imposing a stay of the underlying criminal proceedings. Additionally, petitioner now claims that the issue involving his right to self-representation is rendered moot by the jurisdictional defects raised concerning the accusatory instruments and speedy time trial. In essence, petitioner is asking this court to direct dismissal of his criminal case based upon his jurisdictional argument, instead of the previously asserted claim of his right to self-representation in the underlying criminal case.
Here, petitioner apparently seeks a writ of prohibition that would enjoin Judge Adler from depriving petitioner of his right to represent himself, or a writ of mandamus directing Judge Adler to overturn the determination. The extraordinary remedy of a writ of prohibition is available only where there is a clear right to the relief requested and only when a court, in cases involving challenges to judicial authority, exceeds its jurisdiction or authorized power in a such a manner as to implicate the legality of the entire proceedings (see CPLR § 7804; Lungren v Kane, 88 NY2d 861 ; Kisloff v Covington, 73 NY2d 445  ). Prohibition will not lie for an error in a proceeding where jurisdiction over the subject matter exists and where the petitioner's issues or grievances are subject to review on appeal (Hirschfeld v Friedman, 307 AD2d 856 [1st Dept 2003] ).
The standards governing the availability of article 78 relief in the nature of mandamus are equally well settled. Such relief is available only where there is a clear legal right to the relief sought (Matter of Legal Aid Society of Sullivan County, Inc. v Scheinman, 53 NY2d 12, 16 , and then only to compel the performance of a statutory duty that is ministerial in nature and does not require the exercise of judgement or discretion (see Matter of Crain Communications v Hughes, 74 NY2d 626, 628  ).
Neither mandamus or prohibition is available to petitioner in this case. Petitioner has not adequately demonstrated a clear right to the relief sought. The right to represent oneself in a criminal proceeding, while recognized in the Federal and New York State Constitutions and by statute (see US Const Amend VI; NY Const, art 1, § 6, CPL 210.15; People v McIntyre, 36 NY2d 10  ), is not unlimited. The right to self-representation, does not include “the right to abuse the dignity of the courtroom,” nor the right to “engage in serious and obstructionist misconduct” (Faretta v California, 422 US 806, 835 n. 46 ; United States v Mosley, 607 F.3d 555 [8th Cir. 2010] [the right to self-representation is not to be used “as a tactic for delay, for disruption, for distortion of the system, or for manipulation of the trial process”] ). Similarly, the New York Court of Appeals has held that a defendant in criminal case may invoke the right to proceed pro se provided (1) the request is unequivocal and timely asserted, (2) there has been a knowing and intelligent waiver of the right to counsel, and (3) the defendant has not engaged in conduct which would prevent the fair and orderly exposition of the issues” (People v McIntyre, 36 NY3d at 17). Expanding on the third prong as it is the only relevant requirement here, the Court of Appeals specified that a criminal defendant may forfeit the right to self-representation by “engaging in disruptive obstreperous conduct” (Id. at 18). Further, “when a defendant's conduct is calculated to undermine, upset or unreasonably delay the progress of the trial he forfeits his right to self-representation” (Id.) As such, the determination of whether a pro se criminal defendant has forfeited the right to self-representation involves the trial court's discretion (Matter of Crain, 74 NY2d at 628 [mandamus to compel will not be awarded to compel “an act in respect to which the officer may exercise judgment or discretion”] ).
Insofar as respondent claims that he properly exercised his discretion in revoking petitioner's pro se status on the ground that he forfeited his right of self-representation by his conduct, this Court agrees. However, whether or not this Court agrees with respondent's determination is academic. Petitioner is not entitled to a writ of mandamus as the determination by respondent revoking his right to self-representation was discretionary rather than a ministerial act (CPLR § 7803 ); Matter of Brusco v Braun, 84 NY2d 674, 679  ).
To the extent that petitioner seeks to enjoin Judge Adler from depriving petitioner of his right to represent himself, the writ of prohibition is equally inappropriate. A writ of prohibition against a judge may be issued “only where there is a legal right” and then only when a court acts or threatens to act without jurisdiction in a matter of which it has no power over the subject matter or where it exceeds its authorized powers in a proceeding which it has jurisdiction (Matter of Holtzman v Goldman, 71 NY2d 564, 569  ). It cannot reasonably be argued that the Criminal Court lacks jurisdiction or authority to determine whether a criminal defendant may represent himself or whether he has forfeited the right to self-representation (see NY Const. art. VI, § 15). “Prohibition does not lie to challenge the substance of an order issued by another court (see La Rocca v Lane, 37 NY2d 575 ; Neal v White, 446 AD3d 156 [1st Dept 2007], and will not lie where, as here, its proponent has access to another adequate legal remedy” (Asensio v Fasanya, 2018 NY Slip Op 30201[U], *5 [Sup Ct NY County, February 7, 2018] citing Matter of Town of Huntington v New York State Div. of Human Rights, 82 NY2d 783, 786  ).
As for petitioner's contention that respondent lacks subject matter jurisdiction, this Court reiterates that petitioner is barred by res judicata from re-litigating this same argument which has been adjudicated by the Supreme Court, Bronx County on two previous occasions (O'Brien v City of Syracuse, 54 NY2d 353, 357 ; see also Landau, P.C. v LaRossa, Mitchell & Ross, 11 NY3d 8, 12-13 ; Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 347  ). A party may not “relitigate his dismissed claims by adding allegations that could have been brought earlier” (Goldstein v Massachusetts Mut. Life Ins. Co., 60 AD3d 506, 508 [1st Dept 2009] ). By Decision and Order dated April 27, 2015, Justice Norma Ruiz denied petitioner's Article 78 proceeding which sought a writ of prohibition that would essentially dismiss the underlying criminal case on the grounds that the Criminal Court lacked jurisdiction because the accusatory instruments were improperly verified, the criminal complaint was facially insufficient, and that the speedy trial time had expired. Just as the second Article 78 proceeding was futile because of the doctrine of res judicata, this Court arrives at the same conclusion.6 As such, petitioner does not have a clear legal right to either a writ of prohibition or a writ of mandamus.
Even if petitioner could demonstrate a clear right to the relief sought, a writ of mandamus or prohibition it not appropriate here because petitioner has an adequate alternative remedy at law (see CPLR § 7801; Molea v Marasco, 64 NY2d 718, 720 ; Matter of Veloz v Rothwax, 65 NY2d 902, 903-904  ). Namely, just as respondent points out, petitioner is free to renew his application to proceed pro se before the Criminal Court, which will now assign a new judge to the case. Alternatively, the proper avenue to pursue that challenge is a direct appeal upon conviction, not an Article 78 proceeding (CPL § 450.10 Matter of Holtzman, 71 NY2d at 569; Matter of Neal, 46 AD3d at 160).
CPLR § 6134 permits the court “to vacate or modify” a temporary restraining order or preliminary injunction. A motion to vacate a preliminary injunction should be granted where injunctive relief would not serve the objective the remedy is designed to achieve and where the elements required for imposing a preliminary injunction are not met (CanWest Global Communications Corp. v Mirkaei Tikshoret Ltd., 9 Misc 3d 845, 868 [Sup Ct NY County 2005] ). Specifically, the movant must demonstrate “the likelihood of success on the merits, a danger of irreparable injury, and the balance of equities in its favor (Doe v Axelrod, 73 NY2d 748, 750 ; 1234 Broadway LLC v West Side SRO Law Project, 86 AD3d 18, 23 [1st Dept 2011] ).
Viewed against this standard, the stay of the underlying criminal proceedings should be vacated. There is no likelihood that petitioner will succeed on the merits. As discussed above, prohibition is inappropriate because the Criminal Court has jurisdiction to determine whether petitioner forfeited his right to self-representation in the underlying criminal case, mandamus is inappropriate to direct the outcome of discretionary determinations, and petitioner has other adequate remedies at law. Further, no irreparable harm exists in light of the fact that any potential conviction may be reversed on appeal. Finally, the balance of equities favors Judge Adler.
While petitioner claims that his litigation strategy of “rais[ing] the jurisdictional defect at every stage of the criminal proceeding and before different jurist[s]” was merely “spirited defense litigation,” this Court finds petitioner's actions to be nothing more than a “dilatory tactic” used to further delay the underlying criminal case. Moreover, this Court notes that petitioner's use of dilatory tactics is his “modus operandi” involving his representation in criminal cases (see People v Best, 19 Misc 3d 561, 572 [Crim Ct Queens County 2008] [holding that petitioner forfeited his right to counsel due to his egregious conduct, including defendant's repeated efforts to sabotage his relationships with all five of his attorneys, had filed suit against one attorney and threatened to file suit against another, and repeatedly manipulated the right of self-representation and the right to assigned counsel as a dilatory tactic, and had been warned of the possibility of forfeiture] ). Notably, Justice Joseph Zayas described petitioner's pattern of conduct as follows:
“Here, although the Court repeatedly found that defendant was employing ‘dilatory tactics’ designed to ‘delay th[e] trial,’ and warned defendant to stop ‘playing games with the Court’ and to refrain from ‘manipulat[ing] the Court's calendar,’ defendant remained bent upon delaying the proceedings at virtually every turn. Just as it was defendant's modus operandi to sabotage the attorney-client relationship, it was also defendant's modus operandi to disrupt the orderly administration of justice and employ dilatory tactics to unduly delay the proceedings. This court cannot permit such conduct to continue” (Id. at 575-576).
This Court will similarly not allow such conduct to continue. The interests of Judge Adler and the public in ensuring petitioner's right to a fair trial and providing a prompt and fair resolution in petitioner's criminal matter outweighs petitioner's interests as stated in the petition.
The Court has considered petitioner's remaining arguments and finds them unavailing.
Accordingly, it is
ORDERED that the branch of respondent's motion to vacate the stay of the underlying criminal proceedings is granted; and it is further
ORDERED and ADJUDGED, that the petition is denied and the proceeding is dismissed.
1. Thereafter, on November 4, 2016, petitioner filed a second Article 78 proceeding, by order to show cause, against Judge Adler and District Attorney, Darcel D. Clark, seeking a writ of prohibition to dismiss the underlying criminal case. Petitioner asserted that the Criminal Court lacked jurisdiction because the original complaint was jurisdictionally defective due to facial insufficiency of allegations and, therefore, the entire time until the People filed the superseding information was chargeable to the People under the speedy trial statue. Petitioner also sought a temporary restraining order staying the underlying criminal case pending determination of the Article 78 proceeding. Justice Kenneth Thompson refused to sign petitioner's order to show cause and denied the request for a temporary restraining order, noting that petitioner's previous Article 78 proceeding had been dismissed by Justice Ruiz (respondent's exhibit 21).
2. After the November 14, 2016 appearance before Judge Adler, petitioner attempted to file a new Article 78 proceeding against Judge Adler and District Attorney Clark before the Appellate Division, First Department. Petitioner sought to challenge the same issues that he raised in the second Article 78 proceeding (see FN 2). The Appellate Division clerk rejected petitioner's papers as it does not have original jurisdiction over Article 78 proceedings against Judges of the Criminal Court (CPLR §§ 506 [b], 7804[b] ).
3. According to respondent's papers, the parties discussed the merits of the instant proceeding with Justice Tuitt's court attorney, who advised that the stay of the underlying criminal case would remain in effect until the Article 78 petition was determined.
4. On or about August 7, 2017, this Court assigned a new index number to the instant proceeding, Index No. 101087/2017.
5. Petitioner also submits an amended memorandum of law.
6. Justice Kenneth Thompson declined to sign petitioner's order to show cause and request for TRO because Hon. Norma Ruiz dismissed the prior Article 78 proceeding (respondent's exhibit 21).
Carmen Victoria St. George, J.
Response sent, thank you
Docket No: 101087/2017
Decided: July 03, 2018
Court: Supreme Court, New York County, New York.
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