Matter of Burns v Kooperstein

[*1] Matter of Burns v Kooperstein 2003 NY Slip Op 51489(U) Decided on November 25, 2003 Supreme Court, Suffolk County Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 25, 2003
Supreme Court, Suffolk County

In the Matter of the Application of GLENN BURNS, JR. For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules in the Nature of a Writ of Prohibition, Petitioner

against

DEBORAH KOOPERSTEIN, the Town Judge for the Town of Southampton Justice Court and the TOWN OF SOUTHAMPTON Respondent.



INDEX No. 12767-2003



PLTF'S/PET'S ATTY: BUTLER & KAITERIS, P.C. 80 Orville Drive,

Bohemia, New York 11716

DEFT'S/RESP'S ATTY: O'BRIEN & O'BRIEN, LLP 168 Smithtown

Boulevard, Nesconset, New York 11767

MELVYN TANENBAUM, J.

On February 26, 2003 petitioner GLENN BURNS JR. ("BURNS") was charged with the violation "Unlawful Possession of Marijuana" in violation of Penal Law §221.05 and was issued a desk appearance ticket. "BURNS" appeared for arraignment on May 28, 2003 and was released on his own recognizance by respondent provided that he submit to a supervised drug test and that he report home by 10:00 p.m. each night. This petition seeks an order in the nature of prohibition claiming that the respondent Judge exceeded her authority by imposing conditions which were not relevant to the issue of bail and which violate petitioner's due process rights.

By Order and Judgment dated July 28, 2003 (196 Misc 2d __) petitioner GLENN BURNS JR.'s application for a writ of prohibition to the extent that it imposed a curfew and a supervised drug test was granted. Thereafter by Order dated August 6, 2003 this Court sua sponte stayed the prior July 28, 2003 Order and Judgment directing: 1) that the Suffolk County District Attorney's Office, a necessary party to this proceeding, be served with a copy of the petitioner's application and 2) that responsive papers be served by September 5, 2003. The parties submitted motion papers in support of their respective positions.

On September 24, 2003 petitioner GLENN BURNS JR.'s application for an adjournment in contemplation of dismissal pursuant to CPLR §170.56 with respect to the marijuana possession violation was granted by respondent Judge Kooperstein provided that petitioner undergo a supervised drug test within thirty days. [*2]

Based upon the disposition of the underlying proceeding in local criminal Court, and petitioner's request that the petition seeking a writ of prohibition be withdrawn as moot, the Clerk of the Court is hereby directed to mark the petition as withdrawn upon consent of the parties. The prior Order and Judgment dated July 28, 2003 is hereby vacated.

Dated: November 25, 2003

Decision Date: November 25, 2003