B. T. Productions, Inc. v. Barr

• Decision Date: 06 April 1978
• Citation: 376 N.E.2d 171,44 N.Y.2d 226,405 N.Y.S.2d 9
• Court: New York Court of Appeals Court of Appeals
• Parties: , 376 N.E.2d 171 In the Matter of B. T. PRODUCTIONS, INC., doing business as Town & Country Dinner Theatre, et al., Respondents, v. Culver K. BARR, as Judge of the Monroe County Court, et al., Appellants.

Page 9

405 N.Y.S.2d 9

44 N.Y.2d 226, 376 N.E.2d 171

In the Matter of B. T. PRODUCTIONS, INC., doing business as

Town & Country Dinner Theatre, et al., Respondents, v. Culver K. BARR, as Judge of the Monroe County Court, et al.,

Appellants.

Court of Appeals of New York.

April 6, 1978.

Maxwell B. Spoont, Acting Deputy Atty. Gen. (James H. Sweeney, Albany, of counsel), for appellants

Norman A. Palmiere, Rochester, for respondents.

OPINION OF THE COURT

GABRIELLI, Judge.

In August, 1976, pursuant to a search warrant issued by Monroe County Court Judge Culver Barr, agents of the New York State Organized Crime Task Force (Task Force) entered into petitioners' business premises and seized the bulk of all their business records for the previous two years. Today, almost two years later, the Task Force still has those records. The Task Force has never explained to petitioners the reason for the seizure, the nature of the Task Force's interest in petitioners, nor the use the Task Force intends to make of the records. The seizure has not resulted in any indictments or prosecutions nor, indeed, the presentation of any evidence to any accusatory authority against or concerning these petitioners, and there is nothing to indicate that such will be the case. In short, the petitioners have now been deprived of their property for a substantial period without any explanation or any prior opportunity to object to the seizure.

Immediately following the execution of the warrant, the petitioners made several unsuccessful attempts in both State and Federal courts to regain their property, or at least to obtain an explanation of the seizure. Finally, in desperation, they commenced this article 78 proceeding in the nature of prohibition seeking to compel Judge Barr and the Task Force from acting in excess of their jurisdiction by retaining custody of the records pursuant to a search warrant the issuance of which involved an excess of jurisdiction. The Appellate Division granted the application for the writ of prohibition, and the Task Force and Judge Barr appeal from that judgment. For the reasons discussed below, we sustain the writ and affirm the judgment appealed from.

Whenever a court is presented with an application for a writ of prohibition, it must first determine whether that extraordinary remedy will lie in the particular case. In recent years we have had considerable opportunity to discuss the origins and nature of the writ (see, e. g., Matter of Steingut v. Gold, 42 N.Y.2d 311, 315-316, 397 N.Y.S.2d 765, 768-769, 366 N.E.2d 854, 856-857; Matter of Dondi v. Jones, 40 N.Y.2d 8, 386 N.Y.S.2d 4, 351 N.E.2d 650; La Rocca v. Lane, 37 N.Y.2d 575, 376 N.Y.S.2d 93, 338 N.E.2d 606; Matter of State of New York v. King, 36 N.Y.2d 59, 364 N.Y.S.2d 879, 324 N.E.2d 351; see, generally, Note, Writ of Prohibition in New York Attempt to Circumscribe an Elusive Concept, 50 St. John's L.Rev. 76), and there is now no need to reiterate what we have previously stated in considerable detail. It is enough to note that "the extraordinary remedy of prohibition lies only where there is a clear legal right and only when the body or officer 'acts or threatens to act without jurisdiction in a matter over which it has no power over the subject matter or where it exceeds its authorized powers in a proceeding over which it has jurisdiction' * * * It must be directed to some inferior judicial tribunal or officer and lies to prevent or control judicial or quasi-judicial action only, as distinguished from legislative, executive or ministerial action. * * * A public prosecutor is a quasi-judicial officer, who performs important duties within our judicial system, and is subject to prohibition under proper circumstances" (Matter of Dondi v. Jones, 40 N.Y.2d at p. 13, 386 N.Y.S.2d, at p. 8, 351 N.E.2d at p. 654, supra ).

The present case falls within these bounds. The petitioners contend that the Task Force is without authority to obtain a search warrant, and thus it was an excess of jurisdiction for the court to issue the warrant at the behest of the Task Force and to entrust the seized material to the Task Force's custody purportedly pursuant to CPL 690.55 (subd. 1, par. (b)). If this contention is correct, the court and the Task Force have indeed exceeded their respective jurisdiction. Clearly the writ of prohibition may run against the court. With respect to the Deputy and Assistant Attorneys-General who comprise the Task Force, it is sufficient to note that we have held public prosecutors to be quasi-judicial officers for purposes of the writ of prohibition, declaring them to be subject to the writ in a proper case (see Matter of Dondi Jones, 40 N.Y.2d, at p. 13, 386 N.Y.S.2d, at p. 8, 351 N.E.2d at p. 654, supra; cf. Toker v. Pollack, 44 N.Y.2d 211, 405 N.Y.S.2d 1, --- N.E.2d ----, decided herewith). The same is true of these officials. It should be noted, moreover, that the seized property is still in the custody of the Task Force pursuant to court order, and thus the evil complained of has not yet run its course. ¹

Essentially, petitioners contend that they have been improperly and illegally deprived of their property pursuant to court order, that this deprivation continues and is likely to continue indefinitely, and that there exists no other adequate remedy. As we have previously declared, "the extraordinary remedy of prohibition has not developed as a linguistic exercise but as a response in language and concept to the recognized needs and accommodations in a society governed by the rule of law. There is a larger logic than that delineated by etymology. To eliminate or minimize the concept of an excess of power, on presumed verbalistic grounds, would undermine a common-law principle of ancient standing and the continuous statutory statement of that principle" (La Rocca v. Lane, 37 N.Y.2d, at p. 581, 376 N.Y.S.2d, at p. 99, 338 N.E.2d, at p. 611, supra ).

In most cases, prohibition will not be available to challenge the validity of a search warrant. For one thing, it will lie only if the challenge, as in the present case, goes to jurisdiction rather than simply to the existence of probable cause in a particular situation. Of equal significance is the fact that in the typical case there will exist an adequate alternative remedy. A search warrant is most often used to obtain evidence in the course of a criminal investigation of a particular crime, an investigation which will soon eventuate in a criminal proceeding. In such cases, the validity of the search warrant will of course be subject to challenge by means of a motion to suppress, the denial of which is appealable in the context of an appeal from the resultant conviction. Here, however, there is no prosecution, and there is no indication that there ever will be a prosecution, and thus there is no opportunity for a motion to suppress. To allow the failure to prosecute, a failure which may well be due to the absence of sufficient grounds to prosecute, to serve as a shield for the allegedly illegal seizure and retention of private property by government agents would be to make a mockery of justice. This is indeed a proper case for application of the just and ancient writ of prohibition. ² Before proceeding to the merits of petitioners' claim, it is necessary to deal with one other procedural question: that is, whether this proceeding was properly commenced in the Appellate Division rather than at Special Term. Normally, article 78 proceedings are commenced at Special Term. When such a proceeding is initiated against a Supreme Court Justice or a Judge of a County Court, however, it must be commenced in the Appellate Division (CPLR 506, subd. (b), par. 1). Since one of the respondents in this proceeding is a County Court Judge, the proceeding, as required by statute, was properly commenced in the Appellate Division. Respondents contend that this was improper. They note that a search warrant can only be issued by a local criminal court (CPL 690.05), and that a County Court is not a local criminal court. Pursuant to CPL 10.10, a County Court Judge can sit as a local criminal court, but only for the limited purpose of dealing with preliminary matters in criminal proceedings, including search warrant applications. Respondents argue that since Judge Barr was sitting as a local criminal court when he issued the search warrant, he was not a County Court Judge with respect to the search warrant, and thus CPLR 506 is inapplicable and the proceeding should have been commenced at Special Term. We find this argument unpersuasive. Although it is true that Judge Barr was sitting as a local criminal court when he issued the search warrant, it is equally true that he is nonetheless still a County Court Judge. Indeed, his power to sit as a local criminal court is derived from his position as a County Court Judge and is thus a part of his authority as a County Court Judge. Hence, this proceeding was properly commenced in the Appellate Division.

Turning next to the merits of this case, the question before us is whether the Task Force has the authority to obtain a search warrant. CPL 690.05 provides that a search warrant may be issued to "a police officer, a district attorney or other public servant acting in the course of his official duties". The penultimate issue, than, is whether the power to obtain a search warrant is within the official duties of an agent of the Task Force. If it is not, this absence of authority may not be overcome by the simple strategem of using a State Police officer to obtain the warrant on behalf of the Task Force. While a State Police officer qua police officer does indeed have the authority to apply for a search warrant in pursuance of his police duties, he does not have such power when he is acting solely as an agent of a State agency which does not itself have that authority.

The role of the Task Force is delineated in section 70-a of the Executive Law; and the duties of the...