Duguid v. B.K.
| Docket Number | Index No. 2022-1569 |
| Decision Date | 19 August 2022 |
| Parties | John DUGUID, Petitioner, v. B.K., Respondent. |
| Court | New York Supreme Court |
John Duguid, petitioner pro se.
Richard A. Kupferman, J. Petitioner, a New York State Police Investigator, commenced this proceeding pursuant to CPLR Article 63-A, seeking an extreme risk protection order ("ERPO") against Respondent, B.K. ("Respondent"). The petition seeks to prohibit Respondent from purchasing or possessing a gun for a period of up to one year.
According to the petition and supporting papers, on July 14, 2022, the victim (Nicole) informed Respondent (then 21 years old) that her sister (Tristan) was no longer paying for the insurance on a pickup truck that he drove. In response, Respondent became enraged. He threatened to have his girlfriend and her family beat her up. He then obtained a metal baseball bat from the pickup truck and swung it at her while stating that he was going to "smash [her] head in." During the encounter, Respondent hit the deck railing with the bat, damaging it, and later punched the tailgate of the pickup truck with his fist. Respondent was reportedly "out of control" and caused the victim to be "in fear of [her] life and safety."
After the encounter, Respondent continued to harass the victim. He called 911 and reported that the victim had fired multiple rounds from a rifle at him. Respondent, however, later admitted to the police that he made up the part about the victim shooting at him. He stated that no guns were involved in the incident. He made statements that he was not in a good state of mind and needed mental help. He allegedly told the police officers,
Respondent was arrested in connection with the incident for Menacing in the 2nd Degree, Criminal Possession of a Weapon in the 4th Degree, and Falsely Reporting an Incident in the 3rd Degree. While in custody, he appeared to be distraught with multiple threats of self-harm and requested to speak with a mental health professional. He was later transported to Saratoga Hospital for a mental health evaluation.
Based on the petition and supporting papers, the Court determined that probable cause existed to grant temporary relief.
As a result, on July 15, 2022, the Court issued a temporary extreme risk protection order ("TERPO") and scheduled a hearing for July 22, 2022 (see CPLR 6342 ; 6343). On July 16, 2022, Respondent was notified of the hearing date/time and acknowledged service.
Prior to the hearing, Petitioner conducted a background investigation into Respondent and reported the results to the Court to consider on the application, as required by the applicable statute (see CPLR 6342[9] ). The background investigation revealed that Respondent had been previously arrested for Criminal Mischief in the 4th Degree on May 30, 2022 and April 15, 2021. In one instance, his aunt (Charlene) allegedly observed him throw an object at her pickup truck, damaging the front fender. When confronted, he allegedly stated to her, "how do you like that bitch." In the other instance, Respondent was allegedly caught on camera and later admitted to picking up the neighbors' chairs and planter and throwing them at 12:30 a.m. in the morning, damaging these items.
Respondent is also the subject of two orders of protection. The first is out of Hadley Town Court expiring on January 6, 2023, and the second is out of Lake Luzerne Town Court expiring May 11, 2023. He is also a listed subject on 12 separate Domestic Incident Reports from March 23, 2012 to the present.
Most of the prior reported incidents involved verbal and physical arguments with close family members. In March 2012, Respondent was reportedly "out of control," acting verbally abusive and throwing things around the house. The following year, Respondent threw a screwdriver in the general direction of his sibling. More recently, in June 2017, after his mother told him she could not drive him to the DMV that day, Respondent exhibited uncontrollable anger and punched an outdoor grill numerous times causing his hand to bleed, and then he threatened to kill everyone with a knife when they fell asleep. When a household member attempted to calm him down, Respondent slapped him in his face.
Between 2019 and 2021, Respondent's uncontrolled behavior resulted in a damaged windshield in one instance and verbal arguments easily escalating into physical violence in other instances. Further, in April 2021, Respondent reportedly told his girlfriend that if he had a firearm, he would kill himself.
In advance of the hearing, Petitioner advised the Court that the New York State Attorney General would not be representing him in this matter. By letter dated July 21, 2022, the Court informed Petitioner that if he did not have counsel, the hearing would be conducted within the parameters permitted by law. Specifically, the Court informed Petitioner that it would not allow an unrepresented investigator to present witnesses or cross examine any witnesses produced by Respondent. Subpoenaed witnesses (, the victim(s) and witness(es) with personal knowledge of the underlying event) would be permitted to take the stand to tell the Court about their recollection of events in the form of a narrative. The Court advised Petitioner that it would nevertheless hear the petition and consider the papers submitted, together with any additional information gleaned from any narrative testimony from the subpoenaed witnesses.
At the hearing, Petitioner was not represented by counsel. Respondent and the two subpoenaed witnesses (the victim and her sister) did not appear. The Court then proceeded with the hearing and considered only the petition, the materials submitted in support of the petition, and the background investigation report (see CPLR 6343[2] ). In accordance with the prior letter ruling, Petitioner was prohibited from calling witnesses, introducing exhibits into evidence, and making legal arguments.
At the conclusion of the hearing, the Court reserved decision on whether the proof was sufficient to grant the petition.
Prior to addressing the merits, the Court will first discuss the reasons underlying its prior rulings related to the absence of counsel. As in many other cases, the police officer was statutorily required to file an ERPO petition (see CPLR 6341 ). However, the State (as his employer) did not provide him with legal representation. This raises the issue of whether a non-attorney police officer may appear on behalf of the State in a court of record in the absence of a counsel and, if so, the extent to which the petitioner may pursue the State's cause without counsel.
Generally, a petitioner may plead and prosecute his or her own cause personally or through counsel (see CPLR 105[c] ; 321 [a]; Herczl v. Feinsilver , 153 A.D.3d 1336, 1337, 61 N.Y.S.3d 302 [2d Dept. 2017] ; Matter of Mulligan v. Mulligan , 175 A.D.2d 335, 336, 572 N.Y.S.2d 91 [3d Dept. 1991] ). This right is expressly articulated in CPLR 321(a), which governs civil proceedings before this Court.
CPLR 321(a), however, is limited to a situation in which a party is prosecuting or defending his or her own individual interests/rights (see e.g. Alaina Simone Inc. v. Madden , 200 A.D.3d 589, 590-591, 156 N.Y.S.3d 716 [1st Dept. 2021] ). It does not authorize or address the situation of a State employee who has commenced a lawsuit in his representative or official capacity (see id. ).
Further, where a person has sought to appear or prosecute a cause for another person or entity, the courts have generally not allowed the case to proceed in the absence of counsel (see Alaina Simone Inc. , 200 A.D.3d at 590-591, 156 N.Y.S.3d 716 []; Gershon v. Cunningham , 135 A.D.3d 816, 817, 23 N.Y.S.3d 345 [2d Dept. 2016] []; Blunt v. Northern Oneida County Landfill [NOCO] , 145 A.D.2d 913, 914, 536 N.Y.S.2d 295 [4th Dept. 1988] []; Matter of Trentin v. Civetta Contr., Inc. , 10 A.D.2d 595, 595, 195 N.Y.S.2d 47 [3d Dept. 1960] []; Park v. Song , 61 Misc. 3d 1047, 1049, 85 N.Y.S.3d 855 [Sup. Ct, New York County 2018] []). "These limits on pro se representation serve the interests of the represented party as well as the interests of adversaries and the court" ( Pridgen v. Andresen , 113 F.3d 391, 393 [2d Cir. 1997] ).
In fact, the Judiciary Law makes it unlawful for a person who is not a licensed attorney "to practice or appear as an attorney-at-law for a person other than himself or herself in a court of record in this state" ( Judiciary Law § 478 [emphasis added]; see also Judiciary Law § 484 []). "[T]his prohibition is intended to protect citizens ‘against the dangers of legal representation and advice given by persons not trained, examined and licensed for such work’ " ( Jemzura v. McCue , 45 A.D.2d 797, 797, 357 N.Y.S.2d 167 [3d Dept. 1974] [citation omitted]).
There are certain exceptions to these rules. For example, in ( People v. Black , 156 Misc. 516, 282 N.Y.S. 197 [County Court, Otsego County 1935] ), the defendant was convicted of a violation of the game laws, a misdemeanor. On appeal, the defendant contended that the case was improperly prosecuted by an inspector of the Conservation Department, a person...
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