Darvin M. v. Jacobs

• Decision Date: 05 May 1987
• Citation: 516 N.Y.S.2d 641,509 N.E.2d 336,69 N.Y.2d 957
• Parties: , 509 N.E.2d 336 In the Matter of DARVIN M., Appellant, v. Thomas L. JACOBS, as Commissioner of the Office of Probation, et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 641

516 N.Y.S.2d 641

69 N.Y.2d 957, 509 N.E.2d 336

In the Matter of DARVIN M., Appellant, v. Thomas L. JACOBS, as Commissioner of the Office of Probation, et al., Respondents.

Court of Appeals of New York.

May 5, 1987.

Michele S. Maxian and Caesar D. Cirigliano, New York City, for appellant.

Peter L. Zimroth, Corp. Counsel (Michael S. Adler and Francis F. Caputo, New York City, of counsel), for Thomas L. Jacobs, as Com'r of the Office of Probation and another, respondents.

Elizabeth Holtzman, Dist. Atty. (Barbara D. Underwood and Andrew J. Frisch, Brooklyn, of counsel), respondent pro se.

Robert Abrams, Atty. Gen. (Abigail Peterson, O. Peter Sherwood and Douglas D. Aronin, New York City, of counsel), for Francis X. Egitto, as Acting Justice of the Supreme Court, respondent.

OPINION OF THE COURT MEMORANDUM.

The judgment of the Appellate Division should be affirmed, without costs.

Petitioner brought a proceeding pursuant to CPLR article 78 to prohibit respondents from allowing New York City Department of Probation attorneys to participate as counsel in a probation revocation proceeding brought against him. The Appellate Division properly denied the requested relief. It cannot be said that respondent New York City Department of Probation is clearly acting "in excess of its authorized powers" (Matter of Jacobs v. Altman, 69 N.Y.2d 733, 734, 512 N.Y.S.2d 361, 504 N.E.2d 688; see, 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) in functioning as counsel in presenting probation violations at revocation hearings (see, Executive Law §§ 243, 255[3]; CPL 410.70; 9 NYCRR 352.1[e]; 352.3[b][2]; 352.4[a][1]; 355.3[b][1] ). While a District Attorney may present evidence of alleged violations at revocation hearings, the Department of Probation is not usurping authority vested exclusively in the District Attorney under County Law § 927 by participating as counsel.

A violation of probation giving rise to revocation proceedings is not a "crime" or "offense" (see, Penal Law § 10.00[1], [6] ) which, pursuant to the County Law, must be prosecuted by a District Attorney (see, County Law §§ 700, 927). Nor is a revocation proceeding a "criminal action" (CPL 1.20[16] ) under the Criminal Procedure Law at which a "prosecutor" represents the People (CPL 1.20[31] ). A "criminal action" terminates upon sentencing (see, CPL 1.20[16]; cf., Matter of Schumer v. Holtzman, 60 N.Y.2d 46, 467 N.Y.S.2d 182, 454 N.E.2d 522). A probation revocation, in contrast, is a "criminal proceeding" brought after the completed "criminal action" (see, CPL 1.20[18] ). Its purpose is to determine if defendant's subsequent acts violate the conditions of the original sentence not whether the acts constitute a crime.

TITONE, Judge (dissenting).

In holding that probation violation charges may be "presented" to the court by either the Probation Department or the District Attorney, or both, the majority has overlooked the important distinctions between the roles and responsibilities of those two law enforcement agencies. In the process, the majority has redefined the responsibilities of the District Attorney's office in a manner that relieves it of the duty to represent the People's interest in the important area of securing appropriate punishment for recidivist probationers. Since the conclusion the majority has reached is neither compelled by the relevant statutes nor supported by sound policy, we must, respectfully, dissent.

We note at the outset that what is at stake here is not the unquestionable right of the Probation Department to appear, by counsel or otherwise, at probation revocation proceedings, but rather the right of that agency to perform the function of prosecutor at such hearings. Although the majority refers to the Probation Department's right to "participate as counsel" and some of the briefs submitted here and below suggest that the Department is merely seeking an enhancement of its traditional role as advisor to the court, it is clear from the Department's own submissions that it is asserting, quite forthrightly, a right to manage the prosecution, present and cross-examine witnesses and carry out all of the other functions that would otherwise be performed by a prosecutor. Indeed, the procedural history leaves little doubt about the nature of the activity at issue in this appeal. Petitioner had initially moved in the trial court for an order disqualifying the Probation Department attorney from appearing in a prosecutorial role and, upon denial of that motion, brought the present prohibition proceeding seeking the same specific, narrow relief. Thus, the issue squarely before us is whether, in the absence of the District Attorney, the Probation Department has the power to prosecute probation violations. On the merits of that issue, we would hold in petitioner's favor, both as a matter of statutory interpretation and as a matter of public policy.

It is clear that the Probation Department cannot enter the proceedings as prosecutor pursuant to an informal agreement if the duty to conduct those proceedings on the People's behalf is among the duties imposed on the District Attorney by County Law § 700(1) and § 927 (see, Matter of Schumer v. Holtzman, 60 N.Y.2d 46, 467 N.Y.S.2d 182, 454 N.E.2d 522). ¹ However, the majority has concluded, based upon its construction of County Law § 700(1) and § 927 in light of the definitional provisions of the Criminal Procedure and Penal Laws (CPL 1.20[16], [18], [31]; Penal Law § 10.00[1], [6] ), that the District Attorney's obligations under the former do not include appearing at probation revocation hearings because such hearings are not "criminal actions" (see, CPL 1.20[16], [31] ) and, further, because "[a] violation of probation giving rise to revocation proceedings is not a 'crime' or 'offense' " within the meaning of Penal Law § 10.00(1) and (6) (majority mem. at 959, 516 N.Y.S.2d at 643, 509 N.E.2d at 337). Neither of these conclusions satisfactorily resolves the issue before us.

County Law § 700(1) and § 927, which impose on the District Attorney "the duty * * * to conduct all prosecutions for crimes and offenses," make no reference to "criminal actions" (CPL 1.20[16] ) or "criminal proceedings" (CPL 1.20[18] ). Consequently, the classification of probation revocation proceedings as one or the other does not advance analysis. ² Even more fundamentally, the majority's conclusion that "[a] violation of probation giving rise to revocation proceedings is not a 'crime' or 'offense' " within the meaning of County Law § 700(1) and § 927 is unpersuasive. Probation revocation proceedings are conducted not to punish the offender for the charged violation, but rather to determine whether the offender should be punished more severely for the crime of which he was previously convicted. ³ Although the probation violation may be the occasion for the proceeding, it is the prior conviction, and not the violation, that "gives rise to" the proceeding. A probation revocation proceeding is, in actuality, a continuation of the original felony prosecution that the District Attorney initiated, and the District Attorney's obligation to act as the People's representative in that phase of the prosecution is part of his or her statutory duty "to conduct all prosecutions for crimes and offenses" (County Law § 700[1]; § 927).

In a somewhat different context, this court observed that "[a] prosecution for crime, within the meaning of [the identical predecessor provision of the County Law], includes accomplishing the imposition of the punishment. All the means provided by law to bring the conviction, sentence and the adjudged punishment to a criminal offender constitute the prosecution for the crime committed by him" (Matter of Lewis v. Carter, 220 N.Y. 8, 15, 115 N.E. 19 [emphasis supplied] ). While the Lewis holding is not dispositive here, the court's analysis supports the conclusion that the prosecution of a crime includes not only pursuing the matter through trial or plea and imposition of a revocable probationary sentence, but also continued representation of society's interest in obtaining appropriate punishment and, more specifically, advocacy of incarceration if, in the District Attorney's judgment, the defendant's subsequent behavior demonstrates that probation was not an appropriate disposition.

This is not to suggest that because probation revocation matters fall within the District Attorney's exclusive statutory duties, the District Attorney must litigate or even physically appear at every hearing. As is true for every aspect of a criminal prosecution, the District Attorney has broad discretion to determine the extent to and manner in which a particular criminal act should be prosecuted (see, e.g., People v. Di Falco, 44 N.Y.2d 482, 406 N.Y.S.2d 279, 377 N.E.2d 732). Thus, the District Attorney, cognizant of his or her office's limited resources, may determine that an individual probation violator does not pose a serious threat to society and that, as a consequence, vigorous prosecution of the violation is not warranted. In such a situation, the District Attorney may simply enter a formal written "appearance" but decline to participate or take an adversarial position. Alternatively, where the danger to society is deemed serious but the practical resources needed to prosecute are lacking, the District Attorney may, in accordance with law, deputize an attorney to prosecute the matter on the People's behalf (see, Matter of Maisonet v. Merola, 69 N.Y.2d 965, 516 N.Y.S.2d 646, 509 N.E.2d 341 [where Probation Department attorney was formally deputized for the purpose of prosecuting probation violation] ). What is forbidden by our statutes is not the District Attorney's exercise of discretion in favor of declining to physically appear or prosecute, but rather the informal delegation to another individual or agency of the exclusive prerogative to exercise such...