Cloke v. Pulver

• Decision Date: 02 July 1998
• Citation: 675 N.Y.S.2d 650,243 A.D.2d 185
• Parties: , 1998 N.Y. Slip Op. 6622 In the Matter of Edward G. CLOKE, as District Attorney of Greene County, Petitioner, v. George J. PULVER Jr., as Judge of the County Court of Greene County, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 650

675 N.Y.S.2d 650

243 A.D.2d 185, 1998 N.Y. Slip Op. 6622

In the Matter of Edward G. CLOKE, as District Attorney of Greene County, Petitioner, v. George J. PULVER Jr., as Judge of the County Court of Greene County, et al., Respondents.

Supreme Court, Appellate Division Third Department.

July 2, 1998.

Bohl, Della Rocca & Dorfman P.C. (John E. Dorfman, of counsel), Albany, for petitioner.

Dennis C. Vacco, Attorney General (Peter G. Crary, of counsel), Albany, for George J. Pulver, Jr., respondent.

Ackerman, Wachs & Finton (F. Stanton Ackerman, of counsel), Albany, for Melvin Smith, respondent.

Before WHITE, J.P., and YESAWICH, PETERS, SPAIN and GRAFFEO, JJ.

SPAIN, Justice.

Proceeding pursuant to CPLR article 78 (initiated in this court pursuant to CPLR 506[b][1] ) to prohibit respondent Greene County Judge from enforcing two orders which, inter alia, designated a Special District Attorney pursuant to County Law § 701 to prosecute a criminal action against respondent Melvin Smith.

On December 18, 1996, respondent Melvin Smith (hereinafter defendant) was indicted on four charges alleging the sexual abuse of two young female victims as follows: sodomy in the first degree, sodomy in the second degree, sexual abuse in the first degree and sexual abuse in the second degree.

In May 1997, at a preliminary conference with respondent Greene County Judge (hereinafter the Judge), petitioner, who is the Greene County District Attorney, and defendant's counsel presented a negotiated plea agreement to the Judge whereby defendant would be allowed to plead to a class D felony and be sentenced to one year in jail in satisfaction of all charges. The Judge rejected the proposed plea/disposition and set a trial date for June 25, 1997. Six days before the scheduled trial petitioner wrote to the Judge and again recommended acceptance of the proposed plea because there were deficiencies in the indictment and in the proof and informed the Judge of his belief that the alternative dismissal or acquittal would not be appropriate. In response, the Judge, sua sponte, reviewed the Grand Jury testimony, determined that the deficiencies were not fatal and suggested in a letter that petitioner move to amend or replace the indictment. The record reveals that petitioner never took either of the two courses suggested by the Judge.

Following a conference in chambers on the scheduled trial date, in which the Judge once again refused to accept the proposed plea agreement, the matter was again adjourned after petitioner stated on the record that "we will decline at this time to prosecute the indictment". Following further correspondence, the Judge advised petitioner, in a letter dated July 22, 1997:

The Court is loathe to dismiss this matter on the basis of a "failure to prosecute" and questions whether that is, even, a valid ground for dismissal of an indictment. The Court awaits either a written motion from the defense, or further elaboration of the reasons why the proposed disposition is appropriate. Absent either, the case must be in due course rescheduled for trial.

There being no motions from the defense nor any change in posture by petitioner, a new trial date was eventually set for January 6, 1998.

Petitioner appeared before the Judge on the new trial date and again outlined his concerns with the People's case, including the fact that the crimes were most likely not committed within County Court's jurisdiction, and again informed the Judge that he would not prosecute the indictments. In response, the Judge rendered a decision and order, sua sponte, dated January 7, 1998 finding that petitioner did not have unilateral discretion to decline to prosecute an indicted case, that petitioner's conduct could be viewed as dereliction of his duties and stating that he would not dismiss the case for failure to prosecute nor compel petitioner to proceed. Citing his authority to do so under County Law § 701(1), the Judge then appointed a Special District Attorney after finding that petitioner was "not in attendance" at a term of court which he was required to attend. Petitioner and defendant have each appealed from the order entered upon this decision.

Thereafter, by order dated January 27, 1998, the Judge granted respondent Special District Attorney's request for an adjournment of the trial without setting a new trial date, and continued and extended the Special District Attorney's appointment through September 30, 1999. By order to show cause and petition, petitioner commenced this proceeding pursuant to CPLR article 78 and CPLR 506(b)(1) seeking a writ of prohibition annulling the Judge's January 7, 1998 and January 27, 1998 orders and enjoining the appointment of the Special District Attorney. This court subsequently granted petitioner's request for a stay of the Judge's orders pending the within proceeding.

While we are mindful of the serious allegations contained in the indictment, the key issues in this proceeding distill to whether the Judge exceeded his authority by appointing a Special District Attorney pursuant to County Law § 701(1) and whether relief in the nature of prohibition is appropriate under the facts herein. Petitioner's questionable tactics are likely motivated by his desire to have the Judge assist him in the unpopular task of disposing of a weak indictment, an indictment which petitioner sought and obtained. However "a trial court is not required to accept every offer of a plea merely because the defendant wishes to enter a plea and may reject a plea offer in the exercise of sound judicial discretion" (People v. Washington, 229 A.D.2d 726, 727, 645 N.Y.S.2d 622, lv. denied 88 N.Y.2d 1025, 651 N.Y.S.2d 24, 673 N.E.2d 1251; see, Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427; North Carolina v. Alford, 400 U.S. 25, 38 n. 11, 91 S.Ct. 160, 27 L.Ed.2d 162; People v. Griffith, 43 A.D.2d 20, 23, 349 N.Y.S.2d 94, see also, CPL 220.10[4] ). Here, petitioner's failure to seek an amendment or replacement of the indictment and his continued refusal to prosecute the case has frustrated the disposition process and left the Judge with very few options while the speedy trial clock continues to run. However, we are nonetheless constrained to conclude that the Judge did indeed exceed his authority.

At the outset, it is our view that prohibition is the "appropriate procedural vehicle for the assertion of petitioner's claim" (Matter of Pirro v. Angiolillo, 89 N.Y.2d 351, 355, 653 N.Y.S.2d 237, 675 N.E.2d 1189). The remedy of prohibition is available to prevent a judicial officer "from proceeding or threatening to proceed without or in excess of [his or her] jurisdiction" (Matter of Haggerty v. Himelein, 89 N.Y.2d 431, 435, 654 N.Y.S.2d 705, 677 N.E.2d 276; see, Matter of Pirro v. Angiolillo, supra, at 355, 653 N.Y.S.2d 237, 675 N.E.2d 1189; Matter of Schumer v. Holtzman, 60 N.Y.2d 46, 54, 467 N.Y.S.2d 182, 454 N.E.2d 522). Prohibition does not lie where a judge clearly has the statutory authority to make a discretionary decision, even where an error of law "however egregious" has been made (Matter of State of New York v. King, 36 N.Y.2d 59, 62, 364 N.Y.S.2d 879, 324 N.E.2d 351; see, Matter of Rivette v. McGrath, 241 A.D.2d 717, 660 N.Y.S.2d 101; Matter of Dentes v. Friedlander, 167 A.D.2d 757, 563 N.Y.S.2d 319; Matter of Kavanagh v. Vogt, 88 A.D.2d 1049, 452 N.Y.S.2d 684, affd. 58 N.Y.2d 678, 458 N.Y.S.2d 527, 444 N.E.2d 991). However, where it is claimed that a...