IN RE: MICHAEL C. GREEN

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Supreme Court, Appellate Division, Fourth Department, New York.

IN RE: MICHAEL C. GREEN, IN HIS OFFICIAL CAPACITY AS DISTRICT ATTORNEY OF MONROE COUNTY, PETITIONER–PLAINTIFF, v.

OP 11–00353

Decided: June 17, 2011

PRESENT:  SCUDDER, P.J., CARNI, SCONIERS, AND GREEN, JJ. PHILLIPS LYTLE LLP, BUFFALO (TIMOTHY W. HOOVER OF COUNSEL), FOR RESPONDENT–DEFENDANT HONORABLE JOHN DEMARCO, A JUDGE OF THE COUNTY COURT, COUNTY OF MONROE, STATE OF NEW YORK. TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES ECKERT OF COUNSEL), FOR RESPONDENT–DEFENDANT ELLIS MECHALLEN, CRIMINAL DEFENDANT. EASTON THOMPSON KASPEREK SHIFFRIN LLP, ROCHESTER (DONALD M. THOMPSON OF COUNSEL), FOR RESPONDENT–DEFENDANT FERNANDO LOPEZ, CRIMINAL DEFENDANT.

OPINION AND ORDER

HONORABLE JOHN DEMARCO, A JUDGE OF THE COUNTY

COURT, COUNTY OF MONROE, STATE OF NEW YORK,

ELLIS MECHALLEN, CRIMINAL DEFENDANT, AND

FERNANDO LOPEZ, CRIMINAL DEFENDANT,

RESPONDENTS–DEFENDANTS.

Proceeding pursuant to CPLR article 78 (initiated in the Appellate Division of the Supreme Court in the Fourth Judicial Department pursuant to CPLR 506 [b][1] ) seeking to prohibit the conducting of certain proceedings.

It is hereby ORDERED that the petition/complaint is unanimously granted in part without costs by prohibiting respondent-defendant Honorable John DeMarco from contemporaneously conducting a suppression hearing and bench trial on the indictment regarding respondent-defendant Fernando Lopez, the petition/complaint insofar as it seeks relief regarding respondent-defendant Ellis Mechallen is dismissed as moot, the petition/complaint insofar as it seeks relief in the nature of mandamus to review is denied, and

It is ORDERED, ADJUDGED and DECREED that respondent-defendant Honorable John DeMarco shall not, even with the consent of a defendant, commence a trial prior to the determination of pretrial motions as required by CPL 710.40(3).

The issues properly before us are whether a writ of prohibition should be issued prohibiting respondent from conducting a joint suppression hearing and bench trial in the matter involving respondent-defendant Fernando Lopez and whether petitioner is, in addition, entitled to declaratory relief to that effect.

Writ of Prohibition

CPL 710.40(3) provides that, “[w]hen a motion is made before trial, the trial may not be commenced until determination of the motion.”   Petitioner alleges that, if respondent is permitted to proceed with a joint suppression hearing/trial in the Lopez matter in contravention of CPL 710.40(3), the People will be denied the right to appeal from an order granting the suppression motion inasmuch as their right to appeal is limited to appeal from suppression orders that are entered prior to trial (see CPL 450.20[8] ).   The issue before us therefore is whether respondent's determination to conduct, contemporaneously, the suppression hearing and bench trial in the Lopez matter contravenes CPL 710.40(3) and thus is in excess of respondent's authorized powers in a matter over which he has jurisdiction (see CPLR 7803[2] ).

It is axiomatic that relief in the nature of a writ of prohibition “is available ․ to prevent a court from exceeding its authorized powers in a proceeding over which it has jurisdiction [only where] ․ petitioner has established a clear legal right to that relief” (Matter of Pirro v. Angiolillo, 89 N.Y.2d 351, 355–356 [internal quotation marks omitted];  see Matter of Rush v. Mordue, 68 N.Y.2d 348, 352–353).   Whether to grant the extraordinary remedy of a writ prohibiting respondent from conducting suppression hearings and bench trials contemporaneously is left to the sound discretion of this Court (see Rush, 68 N.Y.2d at 354).   Simply stated, if petitioner has a clear legal right to relief and respondent is exceeding his authorized powers in this matter, then this Court has the discretion to grant a writ of prohibition (see Pirro, 89 N.Y.2d at 355–356;  Matter of Holtzman v. Goldman, 71 N.Y.2d 564, 569).   In making our determination, we may consider factors that include the gravity of harm and whether respondent's actions may be adequately corrected by other means at law or in equity (see Pirro, 89 N.Y.2d at 359;  Rush, 68 N.Y.2d at 354).

Although the instant record reflects that respondent had proposed to petitioner that he would require criminal defendants to consent to a mid-trial adjournment of a joint hearing/trial in the event that the People sought to appeal from an adverse suppression ruling, we conclude that respondent “cannot rejigger the language or specific prescriptions of CPL 450.20(8) ․ without trespassing on the Legislature's domain and undermining the structure of article 450 of the CPL—the definite and particular enumeration of all appealable orders” (People v. Laing, 79 N.Y.2d 166, 172).   We therefore conclude that petitioner has a clear legal right to seek relief in the nature of a writ of prohibition.

Declaratory Relief

Petitioner also seeks declaratory relief determining the rights of the parties with respect to whether respondent may properly conduct joint suppression hearings/bench trials over the objection of the People.   As the Court of Appeals has noted, “[l]awsuits against judges should not be common, but there are times ․ where they are necessary to resolve important issues that could otherwise never reach an appellate court” (Oglesby, 7 NY3d at 565).   We conclude that this matter presents such a scenario.   The record establishes that the joint hearing/trial is commonly utilized in various courts in Monroe County, including respondent's court, both with and without the consent of the People.   Indeed, it is undisputed that in addition to the criminal matters that are the subject of this proceeding, there is at least one other matter pending in respondent's court in which he has directed that the suppression hearing and the bench trial be conducted contemporaneously.   Thus, based upon the record before us, it can be assumed that the issue presented here will recur in other prosecutions and that respondent will decide the issue in the same way provided that he has the consent of the defendant (see id.;  Matter of Morgenthau v Erlbaum, 59 N.Y.2d 143, 152, cert denied 464 U.S. 993).   We therefore conclude that declaratory relief is proper.

Conclusion

Accordingly, we conclude that those parts of the petition/complaint seeking to prohibit respondent from conducting, contemporaneously, the suppression hearing and trial in the matter involving Lopez and seeking a declaration of the rights of the parties herein should be granted, and that a judgment should be entered declaring that respondent shall not, even with the consent of a defendant, commence a trial prior to the determination of pretrial motions as required by CPL 710.40(3).

Patricia L. Morgan

Clerk of the Court