IN RE: Richard A. BROWN

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

IN RE: Richard A. BROWN, District Attorney, etc., Petitioner, v. Martin J. SCHULMAN, etc., et al., Respondents.

Decided: December 29, 1997

Before ROSENBLATT, J.P., and O'BRIEN, THOMPSON, FRIEDMANN and GOLDSTEIN, JJ. Richard A. Brown, District Attorney, Kew Gardens (John M. Castellano and Sharon Y. Brodt, of counsel), petitioner pro se. Stephen R. Mahler, Kew Gardens, for respondent Justice Martin J. Schulman.

Proceeding pursuant to CPLR article 78 to prohibit the respondent Martin J. Schulman, a Justice of the Supreme Court, Queens County, from enforcing his ruling, made on May 21, 1997, which sua sponte severed the trial of the respondent Leroy Williams from the trial of his three codefendants in a criminal action entitled People v. Leroy Williams, pending under Queens County Indictment Number 10707/97.

ADJUDGED that the petition is granted, without costs or disbursements, and the respondent Justice Martin J. Schulman is prohibited from enforcing his ruling made on May 21, 1997, which sua sponte severed the trial of the respondent Leroy Williams from the trial of his three codefendants in a criminal action entitled People v. Leroy Williams, pending under Queens County Indictment Number 10707/97.

 The remedy of prohibition lies when a court acts without jurisdiction or when a court exceeds its authorized powers in a proceeding over which it has jurisdiction (see, CPLR 7801, 7803;  Matter of Pirro v. Angiolillo, 89 N.Y.2d 351, 355, 653 N.Y.S.2d 237, 675 N.E.2d 1189;  Matter of Holtzman v. Goldman, 71 N.Y.2d 564, 569, 528 N.Y.S.2d 21, 523 N.E.2d 297;  Matter of Rush v. Mordue, 68 N.Y.2d 348, 353, 509 N.Y.S.2d 493, 502 N.E.2d 170).   To warrant the extraordinary remedy of prohibition, it is not enough that the court makes a mere legal error;  rather, the court's error must implicate the court's very powers and thereby give the petitioner a clear legal right to relief to correct the error (see, Matter of Pirro v. Angiolillo, supra, at 355-356, 653 N.Y.S.2d 237, 675 N.E.2d 1189;  Matter of Holtzman v. Goldman, supra, at 569, 528 N.Y.S.2d 21, 523 N.E.2d 297;  Matter of Rush v. Mordue, supra, at 353, 509 N.Y.S.2d 493, 502 N.E.2d 170).   Also, prohibition is not granted as of right but only in the sound discretion of the reviewing court (see, Matter of Hynes v. George, 76 N.Y.2d 500, 561 N.Y.S.2d 538, 562 N.E.2d 863;  Matter of Holtzman v. Goldman, supra, at 569, 528 N.Y.S.2d 21, 523 N.E.2d 297).   In exercising that discretion, the reviewing court may weigh factors such as the gravity of the harm caused by the unauthorized act, whether the harm may be adequately corrected on appeal or by recourse to ordinary proceedings at law or in equity, and whether prohibition would furnish a more complete and efficacious remedy even when other methods of redress are technically available (see, Matter of Rush v. Mordue, supra, at 354, 509 N.Y.S.2d 493, 502 N.E.2d 170;  Matter of Dondi v. Jones, 40 N.Y.2d 8, 14, 386 N.Y.S.2d 4, 351 N.E.2d 650).

In the underlying criminal action, Leroy Williams and his codefendants were charged with various counts of criminal sale of a controlled substance and criminal possession of a controlled substance, in addition to a count of conspiracy.   At Williams' arraignment on the indictment, after he waived all motions and announced that he was ready for trial, the respondent Justice Martin J. Schulman sua sponte ordered a severance of Williams' trial from that of the codefendants, over the People's objection.

 There is no authority in the Criminal Procedure Law for the court to sua sponte order separate trials.   Separate trials may only be ordered “upon motion of a defendant or the People” (CPL 200.40[1][d][iii];  see also, e.g., Matter of Holtzman v. Goldman, supra, at 570-571, 528 N.Y.S.2d 21, 523 N.E.2d 297).   In addition, the justification offered by the respondent Justice for granting Williams a separate trial, namely, to afford him a “speedy trial”, was not valid.   There was no suggestion that the People were not ready for trial within the time limits specified by CPL 30.30.   Accordingly, the respondent Justice exceeded his authority.

 Thus, since the petitioner has established a clear legal right to prohibition, the petitioner would be harmed by being forced to separately try charges of conspiracy, and since the petitioner has no other adequate remedy (see, CPL 450.20), we exercise our discretion to grant the petition.

MEMORANDUM BY THE COURT.

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