Matter of Del Col v Rice

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Matter of Del Col v Rice 2013 NY Slip Op 30040(U) January 4, 2013 Supreme Court, Suffolk County Docket Number: 21193-12 Judge: Daniel Martin Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] tC (Q)J?j{EME COURT OF THE STATE OF NEW YORK I.A.S. PART 9 SUFFOLK COUNTY INDEX NO.: 11193·11 PRESENT: liON. DANIEl. MARTIN Motion Date: 07/31112 Submitted: 08/2 t/12 Motion Sequence No.: 02 ~ 1\'10 Application of ROBERT DEL COL and TED DOUKAS, Petitioners, For a ,Judgement pursuant of the CPLR I'ETITIO]\,ERS' ATTYS: Robert J. Del Col, Es(). Pro se 1038 West Jericho Turnpike Smithtown, NY 11787 to Article 78 John G. IJoJi, Ill, Esq. P.O. Box 59 Northport, NY 11768 -againstBON. KATHLEEN RICE, as the duly elected District Attorney of Nassau County, and THE NASSAU COUNTY DISTRICT ATTORNEY'S OFFICE, Respondents. RESPONDENTS' ATTY: Andrew .J. \Veiss Assistant District Attorney Nassau County District Attorney's 272 Old Country Road Mineola, iVY 1150] Office The following named papers have been read on this motion: Notice of Motion/Order Cross-Motion Answering AfI1davits Replying Aftidavits (0 Show Cause x x X This is a pctltlon for CPLR article 78 rellcf in the form of a writ of prohibition. prohibiting th~ respondents from COllVellll1g Grand Jury, gomg forward with a threatened Grand Jury a proceeding or resubmitting a ccrtain previously presented matter, all with rcspect to the facts and circumstances the presentation of which resulted in the indictment of petitioners under Nassau Coullty indictment llumber 313N-l O. Should prohibition not be avai [able, the petlLion also seeks to (ilsquallfy the respondents ["rom participating inthl.:': prosccution of allY crime concerning those events by reason ora perceived contlict o1"1I11ercst. [* 2] The petition before this Court ari:'>esin the wake of the dismissal of the re!erenced indIctment relllt"lll'd III Nassau County upon a grand jlllY presentation by the Office or the Nassau Coumy DIstrict Attorney Kathlecn Ricl'. Both the "Officc" and Kathleen Ric(' arc respondents here_ The pct it loners are the namcd defendants under the indictmcnt wlllch chargcd olle count of grand larccny in lhc second degrce undcr PCllal Law 155.40( I). Following arraignmcnt. each pctitioner. as tkrcndanL submiltcd an omnibus motion before the Nassau County Court. the Honorable j\'kryIJ. Berkowitz, A..J.S.C .. presiding. In their motions Ihc ddendants moved tu dismiss thl' indictment on the ground that, among othc!" things, the District Attorney lacked the authonty to appoint th(' prO:-;('I..:lltor ho presented thl' subject charges io the grand Jury . w .Justice Berkowit/. deCIded defendants' motIon by an order dated Octobcr 22,1010, which was cntercd 011OClOhn 2(1, 2010, findll1g th,lt thc I)istrict Attorney llH[ced lacked the authorIty 10 appoInt the prosecutor who presented the subject charges to the grand Jury. '['he decretal paragraph llt"tlwt order provides: Accordingly. the motion to dismiss the llldictment of Robert Del Co 1and T cd Doukas is granted. CPL 210.35 (5) and CPL 190.25 (3). Leave is granted to represent this matll:r to a new Grand Jury within 45 days oCthe dale of this ordcr. CPL 190.25 (3). Peon Ie v. Mavc 173 A.D.2d 891 (3nl Dept 1991). This dctcnl1lnatloll shall constitute the decision and order of the COUll. On appeal by the People. the Appellate Division, Second Department, on October 4, 20 II. atlir11led the Order of Justice Berkowitz. People \' De/Col. 88 AD3d 737 (2 "oJ Dcpt, 2011). Thereafter, the People sought leave of thc Court of Appeals 10 appeal the Order of the Appellate Division, which application was denicd by Order dated March 30, 20! 2. Between the orders ofthc Appellate Division and the Court of Appeals, on Oetober2l, 20 11, the petitioners here filed a civil action aga1l1st respondents here, und others, III the United States District Court for the E<\stel"ll1)1511"1CI orNcw York. The action 15 presented as ,142 U.S.c. 19X1 <lnd 1l)85 c 1<t for d,llllages for, I ntcr al ia, an lllcgal "pay (0 pmsecUi c sclu:lJleicolIsl)imcl·. " (Emphasi s un us ill the complaint CV 11 5138). The petition prescnts three proffered grounds for relief in the form of a writ of prohIbItIon against further presentment of the underlying cnminal prosecutIon: that their right to a speedy tri:l!. pursuant to CPL 30.30 and the SDi.th Amendment to the United SlateS ConstitutIOn would be violated; thaI such a prosecution would be beyond the geographic jurisdiction oflhe Nassau County District Attorney: and. that n:-pn.'scntmcnt of the mailers underlying the indictlllcnt prevIOusly dismissed by Order or Justice Berkowitz would violate the mandate of ('PI. Il)O.75 (3 I that when all indicted charge has been dIsmIssed it may not again be submitted to a grand Jury unless autilorizcd by the Cour! in its dIscretIon, and since Justiec Berkowitz's dlscrelioll was granted on a conditional basis, and the I..'ondition not having beCl1111CL re-presentment is balTed. The pL'lition also calls for an order disqualifying respondents ii'om the fL1I1herinvestigation and prosecution of the petitioners by reason orthe conlllet allegedly inherent fi'0111 their status as defendants In thl..' l'cI"crellCl:d clvd act lOll Page -2- [* 3] The Order 10 Show Cause Wllll:h inilialed this proceeding conl,lll1cd ,I stay rCSlramll1g re"pol1dent~ from further pro"c:clllOnal actions in regard to the petilioners ol1thl' ullderlying cnmlllal mattel". That stay has rl'lllained in effecl pending this Cour!"s order. WRITS OF PROHIBITION The Court or Appeals has often specified the considerations to be made with regard to the appropriatl'Ill'SS or relief by Writ of Prohibition. Most recently the Court. in Alaller of.')'oarcs I'. Ilcrrick _-- N.E.2d - - -. 2012 WL 5906690 (N.Y.), 1011 N.Y. provided thiS summary: "It is hU1lJliar law that an aniclc 78 proceeding in the nature ufprohibition will nO! lie to correct procedural or substantive errors of law" (Maller (?I"Schllllll'r, I'. HO/l::/IWI/, 60 N.V.2d 46. 51[1983J_ citmg Marlerol/vlorgenl/wlll' f:rlbaulII.59 N. Y.ld 143,147 [198JJ). RatheL the extraordinary remedy "ofprohibitionl1lay be obtained only when a clear legal right ora petitioner is threatened by a body or ofticer ,Kling in ajudicial or quasi-judIcial capacity 'withoutjurisdiction in a manel" over which it has no power over the subject matter or where it exceeds its authorized powers in a proceeding of which It hasJunsdIction '" (iV/Offer o/k/OIgeJltiw/I, 59 N, Y.2d at 147.464 N.Y.S.2d 392, 451 N.E.2d 150, quotlllg lv/allerr4"Dolldi, 40 N.Y.2d 13. 38(, N.Y.S.2d 4. 351 N.E.2d 650). The initial question here IS whether the remedy or prohibition under CPLR article n is available to petitioners to assert a right to bar rurther prosecution, In the rubrle of this Court's deCISIon thosc prinCIples (1n: applied to petilloner,,' proffered grounds as noted above. PETITIONERS' 45 DAY CLAIM PetIlioners claim a clear legal nght to the bcnclit ol'the Imv ot'the State oCNew York, as It IS coddled in the Criminal Procedure Law at ~ 19S.75(3), whl(;h, gcncnllly, provides that when a grand Jury clwrgl' h~ls been dismIssed, It lllay not again be submittcd to a grand jury unless the court ill It~ disCl"l'tioll authOrize" or directs the prosecution to resubmIt the ch<lrge 10 the same or another grand Jury. By virtue ofJustlce lkrkowirz's Ordcr, sUjJra. the discretIOn to resuhmillhe marter \Va" conditionl'd upon rl'SUbmlSslon bemg accomplished within 45 days ofthc date of the COllrt's Order ofOclOber 22. :20 I o. Petitiollcr" conclude that morc thall 45 days have expired since the Order of October 21:. 10 IO. and therefore {he respondents' leave to re-present has lost its effect. I Thereby. the mandate ''I'lu,; (·nun eakulal~~ 111<11 days during whieh no slay wa~ in clrcet have elapsed. omiuillg fWIll 103 c()]lsid~rallnl1 thl' lillhlwlng periou~ \Vh~n Ih~ matter wa:, ~taycd: from OClober 22. 20 t IJ. through the Appella1c Divisiun Ortkr ofOelober 4.1011. {(,PL 46(JAO(1)): and. thercupon through April 2. 2012. Ihc cflcclive dale oflhe Coun of Appeals Order denial of k,IVCto appeilUCPLR 5519{aj( J J). As tlotcd abow. the Ord~r tn Show Cau~c \\ hid COll1menced Ihl~ pml.:ceding Oil July 16. 2012. ennlain.:d a ~tllYwhieh rcnmins in cfkeL Page -3- [* 4] of CPL 195.75(3) that the charge may nol again be submincd. protects petitioners pl"Osecwion on the l~lcts and circumstances underlying the dismissed mdictml'lli. from further The imporl of till.' petition is that. were the respondents to proceed to rt:-pft..'scnt the maner. tlll'Y would be actlllg III excess of theIr authorifY and threatenmg a clear legal right of the petitlolll.'rs_ The act of prosecuting the petitlOncrs would be an act in excess of power rather than a mere error of law. and prohibition would be an available remedy. In this way respondl'll1S arc divestcd of jurisdIctIon to proceed sincl' CPL 190.75 precludes ft..'-pn::sentmcnt. In assl.'ssing petitioners "clear nght" to prohibItive rehef 1I1 thiS specIal pruceeding. it IS IH:ccssary for this COlin oLlsccrtalll the lavv ot"the crilllinal case from which the installt controversy ,Irises. In that regard. to the extent that petllioners rely Oil the County Court's dismis:-;al order. the A ppellate Division's order is the final say (1eaw to <lppeal having bccn Jcn ied by COLIrtof Appeals) It IS the l<lw of the criminal casco People l' f-."V(lIIS, 94 N.Y.2d 499, (200U). The consequcncc to the instant matter is that Justice Berkowitz's Order is entitled to full force and effect upon the appellate court's holding that "Ordered ihat the order is affirmed,·' ~ no modification ofrhe lower coun's order having been provided. Applymg the calcndar to ihe restrictions as affil111cd by the Appellate Division, it is cvidelll that respondents' time to re-present the cnl11l11almancr to a grand jury has expired, more than tWice the allotted time having elapsed. Respondcnts argue tbat Justice Berkowitz's order restricting the time-frame tor rcpreseniment "runs counter to applicable law and is. therefore, not entorceable." They cite CPL 210.20(4). for the proposition that a court has discretion to authorize the People to resubmit but insist that thc discrefioll afforded to the court is only whether a matter may be resubmitted io the samc or anothcr grandJury, so that a eoult may not exercise the further dIscretion of setting a timc rr~lIlle. They also cite anAppcllate DIVISion. Third Department case. People 1', Meriglle, 40 A.[).2d 223 (3"1 Dept, 1(72), lO that cffect and lower coun cases where that tack was followed. The Court is nut informed of any Second Dcparimcnt or Court of Appeals cases which support respondents' ,lssertion that thcre is "\Veil settled law" on this issue, Certainly none which would an-cct the law (lflhis casco Thc Court in Mailige CItes to no case law or statute other than the 011Cit intcl11J"Ctcd. i.c., CPL 210.20. ThiS Cour! is mindful of the rule that it would be bound by the prccedent sct by a holding 1ll anolher Department in the abscncc of Second Dcparlmcm precedent. The Court. however. finds lhm the Appellate Division decision in People v. Del Co/, as cited herein, obviates that consideration. The Coun notes here lhat respondents were frce to have addressed the Second Department in thl' appeal of thc l'rilllillal case with the issuc they presell1 here. They did not. The Appellate Division was frec to n;view any Issue or law involvll1g elTor or defecl in thc crJ11l111al oun c proceeding which may have adversely affccted the appellants (respondetlls here). CPL 470.15 ( 1). I)('oplc I'. (ioodji·hwl, 64 N, Y. 695 ( 1984). ThiS Coun cannot presume that tltt.:Appellate Division"s 2/'('0,1)/" l' !kl Co!, N!~1\1).1d 737. 7:1x (2'''1 DC:]ll. 2(111) Page -4- [* 5] revi\.?w or the subject case did not include all questIOns oflaw which may haw adversely affected the appdlant befexe it_ Including lhe alleged inappropriatene:;s orthc lower cour!' slime rc:striction. Respondents might abo have moved to reargue the original dismissal motion. moved I{)r mor~ time or evcn re-l1reS,'llted lhe- 111attcr within the 45 days allotted. RespOlltknts Iwvt.' not avaikd themselves of ,llly IllC,Il1Sto cllll1inatc the 45 day t1l11e11ll11t l1lposed by .JllSl1CCLkrh:owit" and I affirnll.'d by thl.' Appellate Division. In SlIlll, the ordcr 01" .Justice Berkowil/', allirl1ll'd and 1IIlTllotiil'ict!by the Appellate DIVISIon, remains the law oCtile c!"IlTllnalcase Thus, on Ihis ground. petitioners have e::>tabllshed a clear legal nghtto relief in the nature of prohibition. The COllrt must then also assess whether its discn:tion should be employed to grallt the writ. .A.lafff!r(~r!L1orgeIl111tillI', Erihalllll, 59 N.Y_2d 143 (1083). Prohibition IS appropriate when. on presentation of a clear cut question of proscclltorial jurisdiction. there is no reason why a petitioner should have to await a possible conviction in order 10 vindicate his position. This IS particularly so 'Nhcrc, as here, one of the petitioners, Del Col. is an attorney who would be automatically disbarred upon conviction. Maller (4DolI(/i, 40 N.Y.2d 8 (1076), (art'irllling the Appellate Division, Second Departllll:nl.) There is now no criminal proccct:l1llg cxtant in whieh petitioners 11llghtll1oVC or appeal their rights to the protection allorded citi"ens by CPL 190.75. As the Court of Appeals noted in DO/lcli. at 9: Prohibition docs not issue where the grievance can be redressed by ordinary procccdmgs at law or III equity. such as by appeal. motion or other ordinary applications, but, lftllc appeal, motIOn or other applications would be madequate to prevent the harm and prohibition would fumish a more complete and elTicacious remedy. it may be employed evcn though other methods of redress arc technically available. (Citing LaRocca J". Lalle, 37 N. Y.ld 575, 579-5RO). The Court determines that its discretion is properly employed here to enter a wnt of prohibition upon the petition, harring respondents from re-prcscnting to a grand jury the matters underlying Nassau County ll1dictmcnt numbl.;r 3IJN-IO, as previously dismissed by order ofthc Nassau County Court (Berkowitl'., J ) dated October 22,2010, PETITIONERS' REMAINING CONTENTIONS Whil..: complete relicI' is granted to pelitioners by thc aboV(' t'indlllg. ronsidrration of the rcmainlllg grounds put forth by the petitioners is appropriate. The facts as alleged in the petition. as they pertain to respondents' alleged conflict of lllterest. are. if lrue. protoundly troublmg, Ilowever, thert.' IS no l:lclllal dcterlnination before this Court which would enable ,lll assessment of pctlllOncrs· various cOlllel1tions with H:gard to any bias or eonlliet or Illterr.::SIUll the part 01' n:spundellts. The much ,lillie ipated deCision ol·tile: Court ofAppcais ill the case of Maflcr oj"S()({}"(',I' 1". [ferrick, - - - N.L.2d - - -, 20ll \VL 590()()90 (N.Y.), 2012 N.Y. Slip Op. 01~()55, is instructivc. Thai Court' s decision provides that while courts, as a general rule, can remove a prosecutor, rell10val can only be made upon a t'inding of actual prejudice to the a defendant arisll1g from a dl.'ll1onstrated contliet of interest or a substantial nsk of an abuse of confidence. citing .Maff('l" oj".\dll/lller. ()() N_Y.2d 46 (1983). The claimed conflIct 111 Soares was solely that thcre had been a civil action tiled by the defendant there. That fact alone docs not warrant the removal orthe dIstrict attorney. There must be some evidence that the handling urthe criminal case had an improper motive, or was the Page -5- [* 6] product ofnwlfcasanc\:' or bad faith, which the Court found lackll1g 11lthe record, There is no fJC\ual dctenllll1<ltlOn before thIS Court fro111which a deCISIon. conSIstent with the parameters set forth by the COUI1of Appeals. in SOll!"!!S,can be made. Such a finding would require a hearing and determination of the allegations, which action is obViated by the dCClsion herein. Therefore. petitioners' demand for an order disqualifying respondents and appointing a speCIal prosecutor is denied as moot. Any such finding would be academic as the holding of the Appellate Division and respondents' failure to re-present the maneI' within 45 days, foreclose further prosecution urthe l~lcts and cIrcumstances sUITounding that Indictment. Given the f~lcts and circumstances as presented on the instant petition, it cannot be fairly said that petitioners have stated a constitutional speedy tnal claim. Nor is their claim 011this ground one which cannot be addressed 111 the context or any future criminal matter, should one eflccruatc. Therefore they would not be entitled to the Issuance ofa Writ of Prohibition all thell' ground of the Sixth Amendment speedy tnalllnder CPL 30.30. Pl!Ople v. AI/denoil, 66 N. Y.2d 529 (1985). Blake \' . Hogal/. 25 N. Y .2d 747 ( 19(9): People v. Worley, 201 A.D.2d 520: Mll11er ofLopl!= \'. JI/stices oFtlll! SlIpn'lII!! C'Ollr/ (?/Nnl' }"ork COli/if)!, 36 N, Y.2d 949 (1975), Lastly, there is again no factual detenninarion on geographicjllnsdiction before the Court upon which a Wnt of Prohibition can be properly entered. Such a finding would come from consideration of the facts developed 111 the cnl111l1al case, which arc not before this Court. Marter (?F Steil/gill 1'. Gold, 42 N.Y.2d 311 (1977), People v. Isaacson, 44 N. Y.2d 511. Therefore thIS ground WL)uld also t~lil as IllOL)t. ORDERED that the petition is granted and a Writ of Prohibition prohibiting the respondents Kathleen Rice and the Nassau County District Altorney\ Ornee ['rorn n:-presenting to a grand jury the maHers ul1dcrlyi ng Nassau County indictment number 313 N-I 0, as previously dismissed by order of the Nassau County Court (Berkowitz, J.) dated October 22, 20 I O. shall issuc. ORDERED that the petition is denied in all other respects. Suhmit .Judglllent on notIce, Haled: Jallll:.lry 4, 2013 Riverhead, NY f~Y"i· ANIEL D Page ·6· 71~.~.s.c.

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