Dondi v. Jones

Decision Date03 June 1976
Citation40 N.Y.2d 8,351 N.E.2d 650,386 N.Y.S.2d 4
Parties, 351 N.E.2d 650 In the Matter of Philip DONDI, Respondent, v. Howard A. JONES, as Justice of the Extraordinary Special and Trial Term of the Supreme Court of the State of New York, County of Queens, et al., Appellants.
CourtNew York Court of Appeals Court of Appeals

Maurice H. Nadjari, Deputy Atty. Gen., Special State Prosecutor (Allen G. Swan, Bennett L. Gershman and John G. Siracusa, Jr., New York City, of counsel), for appellants.

Patrick M. Wall, New York City, for respondent.

Robert M. Morgenthau, Dist. Atty. (Peter L. Zimroth and Robert M. Pitler, New York City, of counsel), amicus curiae.

COOKE, Judge.

The underlying criminal action against petitioner Dondi rightly belongs within the jurisdiction of the District Attorney of Queens County.

In this article 78 proceeding in the nature of prohibition, petitioner Dondi seeks to prohibit respondent Jones, a Justice of the Extraordinary Special and Trial Term of the Supreme Court, and respondent Nadjari, a Deputy Attorney-General and a Special Prosecutor, from trying petitioner on an indictment accusing him of certain crimes now pending in the Supreme Court of Queens County. The Appellate Division, unanimously with four Justices participating, granted the petition and dismissed the indictment. Respondents Jones and Nadjari appeal.

It is claimed that Dondi, an attorney, was retained to represent one Evans in a proposed civil case, Evans having been involved in an automobile accident which had been investigated by Police Officer Gaughn; that Dondi sought out Gaughn and offered money in exchange for a change of testimony by the officer which would be favorable to the client; and that, after at first refusing the money, Gaughn in co-operation with the Special Prosecutor, met with Dondi at the attorney's office in Queens and received funds for the altered testimonial version to be advanced in a planned civil action. On November 14, 1974, a Grand Jury of the Extraordinary Special and Trial Term of the Supreme Court in Queens County filed a two-count indictment accusing Dondi of bribery in the second degree and bribing a witness, in violation of sections 200.00 and 215.00 of the Penal Law.

Dondi, on December 13, 1974, moved for dismissal of the indictment on the ground that the Special Prosecutor was without jurisdiction under Executive Order 57 (9 NYCRR 1.57) and on February 6, 1975, the said Extraordinary Term (Murtagh, J.) denied the motion stating that the terms of said order 'are prima facie sufficiently broad to sustain the Special Prosecutor's jurisdiction.' Dondi moved for reargument on February 13, 1975 and Justice Murtagh, in an opinion dated December 19, 1975, stood by his original decision but stated, '(a)fter * * * long consideration', Inter alia:

'The calendars of the Extraordinary Special and Trial Terms of the Supreme Court in four of the five counties of the City of New York contain substantial numbers of cases that have a similar question as to the jurisdiction of the Special Prosecutor. The common denominator in all these cases is the question whether any of them involve 'corrupt acts or omissions by a public servant' within the meaning of an appropriate Governor's Executive order in that the public servant was merely feigning his willingness to be corrupted.

'This Court has decided similar motions in other such cases adversely to the defendants involved but confesses a growing lack of conviction of the correctness of the rulings. The ambiguity of the language of the executive order is such as to permit a ruling to either effect.

'The defendant's position in this case is even more arguable in the light of the phrase in executive orders 'arising out of, relating to or in any way connected with the enforcement of law or administration of criminal justice.'

'It is believed that all such cases, and particularly this one, would better be referred to the district attorney of the appropriate county for prosecution. * * * any issue of jurisdiction or lack of jurisdiction can thereby be avoided. * * *

'In the event that the Special Prosecutor elects to proceed with such trials, counsel will be free to move for a reargument on this subject, and the justice in the trial term is to be free to rule on the matter de novo and is not to consider himself bound to follow this Court's ruling.'

Again, Dondi moved for dismissal, this time before respondent Jones, to whom the case had been assigned for trial, and the motion was once more denied on February 20, 1976.

This prohibition proceeding ensued. The petition prayed that an order issue prohibiti respondents from trying petitioner on the indictment but did not ask for dismissal of the indictment. It is contended that the Special Prosecutor had neither the authority to present evidence against petitioner before the Grand Jury nor authority to prosecute him on the indictment which that body returned and that, for these reasons, respondent Jones is without power to preside at the trial. Premised on the terms of the Executive Order, it is argued that this lack of authority arises from the lack of a corrupt act by a public servant, as well as the absence of relationship between any corrupt act and the enforcement of law or administration of criminal justice in the City of New York.

The threshold question involves the availability of prohibition as a remedy. Originally used by the English king to curb the powers of ecclesiastical courts, prohibition has evolved into a basic protection for the individual in his relations with the State (La Rocca v. Lane, 37 N.Y.2d 575, 578, 376 N.Y.S.2d 93, 96, 338 N.E.2d 606, 609; 23 Carmody-Wait 2d, N.Y.Prac., § 145:205). Rooted in the common law, it has been a statutory remedy in New York for many years and CPLR 7803 now provides that one of the questions that may be raised in an article 78 proceeding is 'whether the body or officer proceeded, is proceeding or is about to proceed without or in excess of jurisdiction' (subd. 2).

It is realized full well that the extraordinary remedy of prohibition lies only where there is a clear legal right and only when the body or officer 'acts or thereatens to act without jurisdiction in a matter over which it has no power over the subject matter or where it exceed its authorized powers in a proceeding over which it has jurisdiction' (Matter of State of New York v. King, 36 N.Y.2d 59, 62, 364 N.Y.S.2d 879, 881, 882, 324 N.E.2d 351, 353; Matter of Nigrone v. Murtagh, 36 N.Y.2d 421, 423--424, 369 N.Y.S.2d 75, 77, 330 N.E.2d 45, 46). 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 (Matter of Kaney v. New York State Civ. Serv. Comm., 190 Misc. 944, 951, 77 N.Y.S.2d 8, 16 (Halpern, J.), affd. 273 App.Div. 1054, 81 N.Y.S.2d 168, affd. 298 N.Y. 707, 83 N.E.2d 11; 23 Carmody-Wait 2d, N.Y.Prac., § 145:215, p. 788; see Comment: The Writ of Prohibition in New York--Attempt to Circumscribe an Elusive Concept, 50 St. John's L.Rev. 76, 84). A public prosecutor is a quasi-judicial officer, who performs important duties within our judicial system, and is subject to prohibition under proper circumstances not alone confined to double jeopardy situations (Matter of Simonson v. Cahn, 27 N.Y.2d 1, 313 N.Y.S.2d 97, 261 N.E.2d 246; People v. Fielding, 158 N.Y. 542, 547, 53 N.E. 497; Matter of Nolan v. Court of Gen. Sessions of County of N.Y., 15 A.D.2d 78, 222 N.Y.S.2d 635, affd. 11 N.Y.2d 114, 227 N.Y.S.2d 1, 181 N.E.2d 751; People ex rel. Luetje v. Ketcham, 45 Misc.2d 802, 804, 257 N.Y.S.2d 681, 683; Matter of McDonald v. Goldstein, 191 Misc. 863, 865, 83 N.Y.S.2d 620, 622, affd. 273 App.Div. 649, 79 N.Y.S.2d 690).

Prohibition does not issue as of right, but only in the sound discretion of the court (Matter of Hogan v. Court of Gen. Sessions of County of N.Y., 296 N.Y. 1, 8, 68 N.E.2d 849, 852; People ex rel. Livingston v. Wyatt, 186 N.Y. 383, 393, 79 N.E. 330, 334; 23 Carmody-Wait 2d, N.Y.Prac., § 145:214, pp. 785--786). In exercising this discretion, various factors are to be considered, such as the gravity of the harm caused by the excess of power, the availability or unavailability of an adequate remedy on appeal or at law or in equity and the remedial effectiveness of prohibition if such an adequate remedy does not exist (La Rocca v. Lane, 37 N.Y.2d 575, 579--580, 376 N.Y.S.2d 93, 97--99, 338 N.E.2d 606, 609--611, Supra; see Comment: The Writ of Prohibition in New York--Attempt to Circumscribe An Elusive Concept, 50 St. John's L.Rev. 76, 98).

The Appellate Division held that prohibition is appropriate, stating that a clear-cut question of the Special Prosecutor's jurisdiction is presented and that it saw no reason why petitioner should have to await a possible conviction in order to vindicate his position, particularly since he is an attorney who would be automatically disbarred upon conviction. This position as to the harm to be visited upon petitioner in the event of disbarment was rejected in Matter of Nigrone v. Murtagh (36 N.Y.2d 421, 425, 369 N.Y.S.2d 75, 78, 330 N.E.2d 45, 46, Supra) where appellant also was a member of the Bar. Here, the Special Prosecutor, in his brief, waives the claim that prohibition is not available and 'strenuously' urges that this court decide the proceeding on its merits. It is stated that 'a resolution of the merits is essential for the proper disposition of this and similar cases', over 30 in number as listed in Exhibit 1 of his brief, and that, without indication from this court, trial courts will be left in a quandary as to how to proceed in these cases. Justice Murtagh's decision on reargument recognizes the existence of 'substantial numbers' of cases that have a similar question as to the jurisdiction of the Special Prosecutor. It is not jurisprudential folly to clarify the point, and even the Special Prosecutor...

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