Doorley v. DeMarco

• Decision Date: 22 March 2013
• Citation: 962 N.Y.S.2d 546,2013 N.Y. Slip Op. 01937,106 A.D.3d 27
• Parties: In the Matter of Sandra DOORLEY, Petitioner–Plaintiff, v. Honorable John L. DeMARCO, Honorable John R. Schwartz, Dalana J. Watford, Criminal Defendant, and Annie Pearl Pugh, Criminal Defendant, Respondents–Defendants.
• Court: New York Supreme Court — Appellate Division

106 A.D.3d 27

962 N.Y.S.2d 546

2013 N.Y. Slip Op. 01937

In the Matter of Sandra DOORLEY, Petitioner–Plaintiff,

v.Honorable John L. DeMARCO, Honorable John R. Schwartz, Dalana J. Watford, Criminal Defendant, and Annie Pearl Pugh, Criminal Defendant, Respondents–Defendants.

Supreme Court, Appellate Division, Fourth Department, New York.

March 22, 2013.

Sandra Doorley, District Attorney, Rochester (Kelly Christine Wolford of Counsel), Petitioner–Plaintiff Pro Se.

Honorable John L. DeMarco, Rochester, Respondent–Defendant Pro Se.

Timothy P. Donaher, Public Defender, Rochester (James Eckert of Counsel), for Respondents–Defendants Dalana J. Watford and Annie Pearl Pugh.

Cyrus R. Vance, Jr., New York City (Victoria M. White of Counsel), for District Attorneys Association of the State of New York, Amicus Curiae.

PRESENT: CENTRA, J.P., PERADOTTO, CARNI, SCONIERS, AND WHALEN, JJ.

Opinion by CENTRA, J.P.:

I

Petitioner-plaintiff, the District Attorney of Monroe County (petitioner), commenced this original hybrid CPLR article 78 proceeding and declaratory judgment action against respondents-defendants Honorable John L. DeMarco and Honorable John R. Schwartz (respondent judges), as well as against respondents-defendants Dalana J. Watford and Annie Pearl Pugh, both criminal defendants (respondent defendants). Respondent defendants were charged by indictments with various criminal offenses and, after arraignment, were accepted in the judicial diversion program by Judge DeMarco. Respondent defendants' cases were thereafter transferred to Judge Schwartz. Petitioner opposes judicial diversion for respondent defendants and seeks, inter alia, mandamus to compel respondent judges to comply with CPL 216.00(1), a judgment prohibiting respondent judges from allowing respondent defendants to participate in the judicial diversion program, and a judgment declaring that only defendants meeting the criteria set forth in CPL 216.00(1) are eligible for the judicial diversion program. The criminal matters concerning respondent defendants were stayed pending the outcome of this proceeding/action. We now conclude that the petition/complaint should be granted in part.

II

As part of the Drug Law Reform Act of 2009, the New York State Legislature enactedCPL article 216, which created a judicial diversion program allowing selected felony offenders, whose substance abuse or dependence was a contributing factor to their criminal conduct, to undergo alcohol and substance abuse treatment rather than be sentenced to a term of imprisonment. After the arraignment of an “eligible defendant,” an authorized court determines whether to allow the defendant to participate in judicial diversion (CPL 216.05[1]; seeCPL 216.05[4]; People v. DeYoung, 95 A.D.3d 71, 73–74, 940 N.Y.S.2d 306).

CPL 216.00(1) defines an “ ‘[e]ligible defendant’ ” for judicial diversion as

“any person who stands charged in an indictment or a superior court information with a class B, C, D or E felony offense defined in article two hundred twenty or two hundred twenty-one of the penal law or any other specified offense as defined in subdivision four of section 410.91 of this chapter....”

Subdivisions (1)(a) and (b) of CPL 216.00, which do not apply here, list certain defendants who are not eligible for judicial diversion, such as defendants with a previous violent felony conviction. Penal Law articles 220 and 221 relate to controlled substances offenses and offenses involving marihuana, respectively, and CPL 410.91 sets forth the parameters for a sentence of parole supervision. Notably, CPL 410.91(4) was repealed as of April 7, 2009, prior to the effective date of CPL 216.00; that subdivision of CPL 410.91 had imposed a requirement that the People consent to a sentence of parole supervision for a specified offense that was a class D felony. It appears that the reference to CPL 410.91(4) was merely a typographical error and that the legislature meant to cite CPL 410.91(5), which lists the specified offenses ( see Peter Preiser, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 11A, CPL 216.00, 2012 Cumulative Pocket Part at 69–70). The specified offenses listed in CPL 410.91(5) include offenses such as burglary in the third degree (Penal Law § 140.20) and criminal mischief in the second degree (§ 145.10).

In Monroe County, Judge DeMarco arraigns all felony indictments containing charges that are not expressly excluded by CPL 216.00(1)(a) or (b). If Judge DeMarco determines that a defendant is eligible for judicial diversion and the defendant wishes to participate in that program, the case is transferred to Judge Schwartz, who monitors compliance with the alcohol or substance abuse treatment.

III

Watford was charged by an indictment with four counts of falsifying business records in the first degree (Penal Law § 175.10), three counts of identify theft in the second degree (§ 190.79[1] ), and one count of identify theft in the third degree (§ 190.78[1] ). The People alleged that Watford, on various dates in 2010, assumed the identities of four individuals in order to obtain cable services. After arraignment, Judge DeMarco ordered Watford to undergo a substance abuse evaluation over the People's objection. Watford thereafter moved for admission into judicial diversion, which the People opposed. On April 25, 2012, Judge DeMarco granted the motion and allowed Watford to be admitted into judicial diversion ( People v. Watford, 36 Misc.3d 456, 461–462, 943 N.Y.S.2d 740). Watford thereafter pleaded guilty to the charges in the indictment and signed a judicial diversion contract. Watford was promised a misdemeanor conviction and a sentence of no more than three years of probation if she successfully completed judicial diversion. In the event that Watford failed to complete judicial diversion, she would be sentenced to an indeterminate term no greater than 2 to 4 years' incarceration. Watford's case was then transferred to Judge Schwartz to monitor her compliance with her judicial diversion contract.

In May 2012, Watford was charged by a second indictment with identity theft in the second degree (Penal Law § 190.79[1] ). The People alleged that “on or about and between” January 5 and 9, 2012, Watford assumed the identity of another individual and obtained in excess of $500. After arraignment, Judge DeMarco on June 20, 2012 again allowed Watford into judicial diversion. She pleaded guilty to the charge and signed a judicial diversion contract with the same terms as the prior contract.

Pugh was charged by an indictment with promoting prison contraband in the first degree (Penal Law § 205.25[1] ), assault in the third degree (§ 120.00 [1] ), and petit larceny (§ 155.25). The People alleged that, on May 12, 2012, Pugh stole property from a grocery store, caused physical injury to a security guard, and knowingly and unlawfully introduced a cell phone into the Monroe County Jail. On August 8, 2012, Judge DeMarco accepted her into judicial diversion for the reasons he had outlined in his decision in the Watford matter. Pugh thereafter pleaded guilty to the charges and signed a judicial diversion contract. If successful in judicial diversion, Pugh would receive a misdemeanor conviction and a sentence of three years' probation. If unsuccessful, she would receive a sentence of one year in jail.

IV

Petitioner commenced this original proceeding/action on August 24, 2012 seeking, inter alia, (1) a judgment pursuant to CPLR 7803(1), i.e., mandamus to compel, directing respondent judges to deny respondent defendants' participation in the judicial diversion program; (2) a judgment pursuant to CPLR 7803(2), i.e., writ of prohibition, prohibiting respondent judges from allowing respondent defendants to participate in the judicial diversion program; and (3) a judgment pursuant to CPLR 3001 declaring that only defendants who meet the criteria of CPL 216.00(1) are eligible for participation in the judicial diversion program. Petitioner contended that respondent defendants were not eligible for judicial diversion because they did not meet the criteria of CPL 216.00(1).

Respondent defendants submitted answers, in which they asserted that a determination that a defendant is eligible for judicial diversion is never a ministerial act, and always involves the exercise of the court's discretion; the respondent judges did not act in excess of their jurisdiction or authorized powers; and the outcome of each case is fact-specific. Watford alleged as an affirmative defense that the proceeding/action was untimely. Judge DeMarco submitted an answer and raised three objections: the petition/complaint failed to state a claim; the claims were not the proper subject of a CPLR article 78 proceeding; and the proceeding/action was time-barred. Judge Schwartz has elected not to appear.

V

Initially, we reject the timeliness objection. Petitioner commenced this hybrid proceeding/declaratory judgment action pursuant to CPLR article 78 and CPLR 3001, respectively. The statute of limitations for a proceeding seeking mandamus to compel is four months ( seeCPLR 217; Town of Webster v. Village of Webster, 280 A.D.2d 931, 933–934, 720 N.Y.S.2d 664), as it is for a proceeding seeking prohibition ( seeCPLR 217; Matter of Holtzman v. Marrus, 74 N.Y.2d 865, 866, 547 N.Y.S.2d 829, 547 N.E.2d 84;Matter of Holtzman v. Goldman, 71 N.Y.2d 564, 568, 528 N.Y.S.2d 21, 523 N.E.2d 297 n.1). To determine the statute of limitations for a declaratory judgment action, we must “examine the substance of that action to identify the relationship out of which the claim arises and the relief sought” ( Solnick v. Whalen, 49 N.Y.2d 224, 229, 425 N.Y.S.2d 68, 401 N.E.2d 190;see Bennett Rd. Sewer Co. v. Town Bd. of Town of Camillus, 243 A.D.2d 61, 66, 672 N.Y.S.2d 587). If the rights of the parties may be resolved in a different form of proceeding for which a specific limitations period applies, then we must use that period ( see Solnick, 49 N.Y.2d at...