People ex rel. Sutherland v Russo
Annotate this CaseDecided on January 29, 2018
Supreme Court, Rensselaer County
The People of the State of New York ex rel. Olajuwon M. Sutherland and DEMIER M. KLEVITCH-GAY, Petitioners, For a Judgment Pursuant to Article 70 of the Civil Practice Law and Rules,
against
Patrick Russo, Sheriff of the County of Rensselaer, Respondent.
258572
JOHN C. TURI, ESQ.
RENSSELAER COUNTY PUBLIC DEFENDER
(Danielle Neroni Reilly, Of Counsel)
Attorneys for the Petitioner Olajuwon M. Sutherland
SHANE HUG, ESQ.
Attorney for the Petitioner Demier K. Klevitch-Gay
HON. JOEL E. ABELOVE
RENSSELAER COUNTY DISTRICT ATTORNEY
(Cheryl McDermott, Of Counsel)
Patrick J. McGrath, J.
Relators have petitioned this Court by writ of habeas corpus for their immediate release from custody. The facts adduced upon the return of the writ are as follows: relators were arraigned by Hon. Christopher Maier, Troy City Court, on January 19, 2018 on multiple counts of Criminal Possession of a Weapon in the Second Degree as well as Criminal Possession of Marijuana. They were remanded to the Rensselaer County Jail without bail. A preliminary hearing was scheduled for January 23, 2018. At the conclusion of the hearing, Judge Maier determined that the People had failed to establish reasonable cause to believe that the defendants had committed any felony, and therefore, released the defendants and dismissed the charges.
On that same date, a felony complaint was filed against these same defendants, charging them with Criminal Possession of a Weapon in the Third Degree based on the same date, same time and same weapon as was charged in the initial felony complaints, and which were the subject of the January 23, 2018 preliminary hearing.
Relators argues that the People cannot file a felony complaint in connection with the same incident to extend the time period in which a defendant can be held pursuant to CPL Article 180, especially after having failed to establish reasonable cause that defendant committed a felony at the preliminary hearing. Relators note that if the People disagree with the result of the preliminary hearing, their remedy is to seek an indictment. Preiser, Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, CPL 180.70 at 214 [2007 ed].
On the return date of the writs, the People filed a Certificate pursuant to CPL 180.80(2)(a) indicating that the Grand Jury voted an indictment against relators with respect to the events alleged in the pending felony complaints, which prevents their immediate release and moots the writs. CPL 180.80(1); 180.80(2)(a). "It is a fundamental principle of our jurisprudence that the power of a court to declare the law only arises out of, and is limited to, determining the rights of persons which are actually controverted in a particular case pending before the tribunal. This principle, which forbids courts to pass on academic, hypothetical, moot, or otherwise abstract questions, is founded both in constitutional separation-of-powers doctrine, and in methodological strictures which inhere in the decisional process of a common-law judiciary." Matter of Hearst Corp. v Clyne, 50 NY2d 707, 713-14 (1980) (internal citations omitted).
Thus, the merits of the application may only be addressed if found to lie within the exception to the mootness doctrine. The exception permits review of important and recurring issues which, by virtue of their relatively brief existence, would be rendered otherwise non-reviewable. See Roe v Wade, 410 US 113, 125 (1973). To meet the exception, this Court must find that three common factors exist: "(1) a likelihood of repetition, either between the parties or among other members of the public; (2) a phenomenon typically evading review; and (3) a showing of significant or important questions not previously passed on, i.e., substantial and novel issues." Matter of Hearst Corp. v Clyne, supra, 50 NY2d at 714-15.
There is a likelihood of repetition of this issue. A court may take judicial notice of prior judicial proceedings though in a different court and involving different parties. In the Matter of Justin EE., 153 AD2d 772 (3d Dept. 1989) citing Fisch, NY Evidence § 1065, at 602-03 [2d ed]. This Court takes judicial notice of another habeas corpus writ recently filed in Rensselaer County Court (People ex rel. James White v. Russo, Index 258417, January 5, 2018), wherein the relator challenged the District Attorney's ability to file an additional felony complaint, based on a different theory of a previously charged crime, rather than proceeding with the scheduled preliminary hearing. As there has already been a demonstrated repetition of this issue, the first factor is met. The Court also finds that this case is a classic example of an issue that quickly eludes judicial scrutiny. Given the speed with which a determination must be made in order to give any effective relief, the facts on this writ present a "phenomenon typically evading review." Further, the Court's research reveals that the issue of whether the prosecution may file additional felony complaints based on the same criminal incident or transaction after failing to establish reasonable cause at a preliminary hearing has not been judicially reviewed, and that it constitutes a "substantial and novel" issue. Since one cannot regain or undo time spent incarcerated, the issue is important to the administration of justice and the effectuation of our laws. Accordingly, the Court finds that the issue falls squarely into the exception to the mootness doctrine, and should be addressed on the merits.
At the outset, "it has been consistently held that an accused has no constitutional right to a preliminary hearing (Dillard v. Bomar, 342 F.2d 789 (6th Cir. 1965), and the failure to accord an accused a preliminary hearing is in no way violative of due process. United States v. Smith, 343 F.2d 847 (6th Cir. 1965)." States v. Motte, 251 F. Supp. 601 (SDNY 1966); see also People v. Fagan, 53 AD3d 983 (3d Dept. 2008) ("A defendant does not have any constitutional right to a preliminary hearing"); People v. Abbatiello, 30 AD2d 11 (1st Dept. 1968). Therefore, the Court must review the statute in connection with the preliminary hearing.
Criminal Procedure Law 180.80 states in relevant part as follows:
"Upon application of a defendant against whom a felony complaint has been filed with a local criminal court ... and who, since the time of his arrest or subsequent thereto, has been held in custody pending disposition of such felony complaint, and who has been confined in such custody for a period of more than one hundred twenty hours or, in the event that a Saturday, Sunday or legal holiday occurs during such custody, one hundred forty-four hours, without either a disposition of the felony complaint or commencement of a hearing thereon, the court must release him on his own recognizance unless:1. The failure to dispose of the felony complaint or to commence a hearing thereon during such period of confinement was due to the defendant's request, action or condition, or occurred with his consent; or2. Prior to the application: (a) The district attorney files with the court a written certification that an indictment has been voted; or (b) An indictment or a direction to file a prosecutor's information charging an offense based upon conduct alleged in the felony complaint was filed by a grand jury; or3. The court is satisfied that the people have shown good cause why such order of release should not be issued. Such good cause must consist of some compelling fact or [*2]circumstance which precluded disposition of the felony complaint within the prescribed period or rendered such action against the interest of justice."In interpreting a statute, the intent of the legislature is the controlling factor. See Matter of State of New York v Ford Motor Co., 74 NY2d 495 (1989); Matter of Carr v New York State Bd. of Elections, 40 NY2d 556 (1976); Matter of Albano v Kirby, 36 NY2d 526 (1975). The intent of the legislature is to be sought and ascertained from the words and language used or from the language in the act and where statutory language is clear and unambiguous, the Court must give effect to the plain meaning of the words. See Patrolmen's Benevolent Assn. v City of New York, 41 NY2d 205 (1976); Matter of Bolden v Blum, 68 AD2d 600 (3d Dept. 1979).
The time period in which to hold a preliminary hearing starts to run from defendant's custody based on the filing of a felony complaint in a local criminal court, and expires upon the failure to dispose of "such criminal complaint" within the 120 hours/144 hours set forth in the statute. CPL 180.80(1). This statutory language is clear and unambiguous, and therefore, the Court must give effect to the plain meaning of those words. This Court is aware that the Third Department has held that "CPL 180.80 was enacted to ensure that a defendant being held in custody on the basis of a felony complaint not be incarcerated for an excessive period of time prior to a judicial determination that there is reasonable cause to believe that he committed a felony (see CPL 180.70)." People ex rel. Suddith v Sheriff of Ulster County, 93 AD2d 954 (3d Dept. 1983). Further, that the Commission Staff Notes to CPL 180.80 state that "[t]his section is designed to prevent the situation in which a defendant who has been arraigned upon a felony complaint is, by reason of the court's refusal to fix bail or of the defendant's inability to furnish bail in the amount fixed, confined in prison for an extensive period awaiting preliminary examination of the charge." The Court also takes note of relators' concerns. The statute seemingly allows for the People to keep filing new felony complaints based on the same transaction - in this case, the same gun - based on a different theories, after failing to meet the low threshold of reasonable cause at the preliminary hearing, which could lead to the absurd result of the defendant being held nearly interminably based on new felony complaints, or at least until the statutory speedy trial limits allow. CPL 30.30.
However, as noted above, the statutory language of CPL 180.80 is clear. A "felony complaint" is defined as a "verified written accusation by a person, more fully defined and described in article one hundred, filed with a local criminal court, which charges one or more defendants with the commission of one or more felonies and which serves to commence a criminal action but not as a basis for prosecution thereof." CPL 1.20(8). CPL 180.80 does not reference a "criminal action" (CPL 1.20(16)), a much broader term than "felony complaint" in that a "criminal action" encompasses not only the first accusatory instrument, but "all further accusatory instruments directly derived from the initial one." The term "criminal action" is used in the calculation of speedy trial periods. See CPL 30.10. In the context of the speedy trial statute, the Court of Appeals has found "there can be only one criminal action for each set of criminal charges brought against a particular defendant, notwithstanding that the original accusatory instrument may be replaced or superseded during the course of the action." People v Lomax, 50 NY2d 351, 356 (1980) (emphasis added); see also People v Cooper, 98 NY2d 541, 543-44 (2002) ("Accordingly, each criminal action generally has only one date of commencement for [*3]purposes of the CPL 30.30 readiness rule, regardless of how many times the accusatory instrument is amended or replaced.") (emphasis added).
The Legislature did not use the term "criminal action" in CPL 180.80. If it had, the relators would be entitled to release after the time periods in the statute expired without disposition of the initial complaint, regardless of how many successive felony complaints were filed against them thereafter. Had the Legislature intended to prevent the People from filing successive felony complaints based on the same events, it could have used the term "criminal action," as it did in the speedy trial statute. It is possible, as argued by the relator, that the Legislature simply did not envision the current set of facts. However, as noted above, judicial scrutiny of statutory language is limited when the words are clear and unambiguous. Further, despite relator's argument to the contrary, nothing in the plain words of the statute disallows the filing of another felony complaint based on a lesser included offense of the dismissed original felony complaint.
The Court cannot ignore the use of the narrow and defined term "felony complaint" in CPL 180.80. While cognizant that this apparent statutory loophole provides the potential for profound abuse, this Court's function is not to legislate. "One of the fundamental principles of government underlying our Federal Constitution is the distribution of governmental power into three branches—the executive, legislative and judicial—to prevent too strong a concentration of authority in one person or body." Under 21, Catholic Home Bur. for Dependent Children v City of New York, 65 NY2d 344, 355 (1985). The Court of Appeals has "consistently recognized that this principle of separation of powers among the three branches is included by implication in the pattern of government adopted by the State of New York." Id. at 355-56. "While the doctrine of separation of powers does not require the maintenance of three airtight departments of government, it does require that no one branch be allowed to arrogate unto itself powers residing entirely in another branch." Id. at 356 [internal quotation marks and citations omitted].
"[I]t is a fundamental principle of the organic law that each department of government should be free from interference, in the lawful discharge of duties expressly conferred, by either of the other branches." Matter of New York State Inspection, Sec. & Law Enforcement Empls., Dist. Council 82, AFSCME, AFL-CIO v Cuomo, 64 NY2d 233, 239 (1984) citing People ex rel. Burby v Howland, 155 NY 270, 282 (1898); see Matter of Fornario v Clerk to Rockland County Legislature, 307 AD2d 927, 928-29 (2003). "In this regard, 'it is not the province of the courts to direct the legislature how to do its work.'" Matter of Fornario v Clerk to Rockland County Legislature, 307 AD2d at 929 quoting New York Pub. Interest Research Group v Steingut, 40 NY2d 250, 257 (1976); see People ex rel. Hatch v Reardon, 184 NY 431, 442 (1906), aff'd 204 US 152 (1907). "[S]eparation of powers principles generally preclude courts from 'intrud[ing] upon the policy-making and discretionary decisions that are reserved to the legislative and executive branches.'" Matter of Maron v Silver, 58 AD3d 102, 107 (2008) quoting Campaign for Fiscal Equity, Inc. v State of New York, 8 NY3d 14, 28 (2006).
While this Court finds the People's tactics to be contrary to the spirit of CPL 180.80, it is for the Legislature to enact a change if it deems necessary. The Court cannot substitute "criminal action" for "felony complaint" in order to effectuate the intent of the statute.
Accordingly, and for the foregoing reasons, the petitions for writs of habeas corpus are denied.
This shall constitute the Decision and Order of the Court. The original Decision and Order is being returned to the District Attorney's Office. The District Attorneys Office shall serve a copy of this Order with Notice of Entry upon counsel for the relators. The Court will forward all original supporting documentation to the County Clerk's Office for filing. The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220. The District Attorney's Office is not relieved from the applicable provisions of that rule relating to filing, entry, and notice of entry.
SO ORDERED AND ADJUDGED.
ENTER,
Dated: January 29, 2018
Troy, New York
________________________________________
PATRICK J. McGRATH
Justice of the Supreme Court
Papers Considered:
1. Writ of Habeas Corpus, signed January 24, 2018; Petition for Writ of Habeas Corpus, Danielle Neroni Reilly, Esq., dated January 23, 2018, with annexed Exhibit A & B.
2. Writ of Habeas Corpus, signed January 25, 2018; Petition for Writ of Habeas Corpus, Shane Hug, Esq., dated January 24, 2018, with annexed Exhibits A & B.
3. Certificate Pursuant to CPL 180.80(2)(a), Cheryl A. McDermott, Assistant District Attorney, dated January 25, 2018.
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