Ferraro v. Supreme Court, County of Queens

• Decision Date: 19 April 1971
• Citation: 321 N.Y.S.2d 842,36 A.D.2d 841
• Parties: In the Matter of Frank FERRARO et al., Petitioners, v. SUPREME COURT, COUNTY OF QUEENS, and Hon. Thomas J. Mackell, District Attorney of Queens County, Respondents. In the Matter of Milton KELLOG, Petitioner, v. SUPREME COURT, COUNTY OF QUEENS et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 842

321 N.Y.S.2d 842

36 A.D.2d 841

In the Matter of Frank FERRARO et al., Petitioners, v. SUPREME COURT, COUNTY OF QUEENS, and Hon. Thomas J. Mackell, District Attorney of Queens County, Respondents.

In the Matter of Milton KELLOG, Petitioner, v. SUPREME COURT, COUNTY OF QUEENS et al., Respondents.

Supreme Court of New York, Appellate Division Second Department.

April 19, 1971.

SAMUEL RABIN, P.J., and HOPKINS and MARTUSCELLO, JJ., concur, with the following memoranda:

HOPKINS. J., votes for the dismissal of the proceedings, with the following memorandum.

A proceeding under article 78 of the CPLR may not be used to challenge a determination in a criminal matter (CPLR 7801, subd. 2). The traditional purpose of prohibition is to stop proceedings by a body or officer without or in excess of jurisdiction (CPLR 7803, subd. 2). That purpose is not what the petitioners in reality are seeking by the present application. It can hardly be claimed that the Supreme Court, Queens County, does not have jurisdiction over both the subject matter of the indictment and the persons of the petitioners. Nor can it be said that the trial court acted beyond its jurisdiction in denying the petitioners' motions to dismiss the indictment. What the petitioners' grievance actually is is that they are dissatisfied with the court's ruling. But if the petitioners are right in their contention, an appeal lies to review that ruling in the event that they are convicted after a trial (cf. CPLR 7801, subd. 1; Code Crim.Pro., § 517). Prohibition cannot be invoked as a substitute for an appeal (Matter of Burton v. Marshall, 20 N.Y.S.2d 797, 284 N.Y.S.2d 453, 231 N.E.2d 129; Matter of Bloeth v. Marks, 20 A.D.2d 372, 247 N.Y.S.2d 410). Only where the defendant in a criminal action will be put in double jeopardy will the second prosecution be prohibited (Matter of Kraemer v. County Court of Suffolk County, 6 N.Y.2d 363, 189 N.Y.S.2d 878, 160 N.E.2d 633; Matter of Mack v. Court of Gen. Sessions of County of N.Y., 14 A.D.2d 98, 217 N.Y.S.2d 423), on the ground that one should not be harassed by a second trial on the same charge. Nevertheless, other rulings in the course of a criminal action, even though involving constitutional rights, cannot trigger prohibition (Matter of Blake v. Hogan, 25 N.Y.2d 747, 303 N.Y.S.2d 505, 250 N.E.2d 568 (claim of denial of speedy trial); People v. Fitzpatrick, 34 A.D.2d 730, 311 N.Y.S.2d 577 (waiver of jury trial); Matter of Saunders v. Lupiano, 30 A.D.2d 803, 292 N.Y.S.2d 44 (jury trial for youthful offender); Matter of Wilson v. Gallucci, 32 A.D.2d 784, 302 N.Y.S.2d 322 (denial of subpoena on behalf of a defendant); cf. Matter of Greater N.Y. Corp. of Seventh Day Adventists v. Commission on Human Rights of City of N.Y., 27 N.Y.2d 898, 317 N.Y.S.2d 368, 265 N.E.2d 777). Hence, I do not reach the question whether section 518--a of the Code of Criminal Procedure is a complete defense to the charges against the petitioners, and I express no opinion at this time on that issue.

SAMUEL RABIN, P.J., votes to dismiss the proceedings for the reasons stated in the memorandum of HOPKINS, J., with the further memorandum:

While I agree that the instant proceeding under article 78 of the CPLR has been improperly brought, I note that were I to vote on the merits herein I would, nonetheless, vote to dismiss the writs on the grounds that where a suppression order has been sustained on appeal, section 518--a of the Code of Criminal Procedure does not bar the prosecution of existing criminal charges in the indictment where those charges do not involve the property suppressed.

MARTUSCELLO, J., votes to dismiss the proceedings on the ground that, on the record before this court, it is impossible to determine whether the remedy of a writ of prohibition should be invoked.

I am of the view that this court could grant the relief sought where relators clearly establish that the record indicates that the remaining charges on which the District Attorney seeks to proceed involve the suppressed evidence. Even though other remedies, such as an appeal from any judgment of conviction which results from the indictment, may be available, if it were clearly shown on the record that the remaining counts of the indictment involved the suppressed evidence, this court would have jurisdiction to grant the writ (Matter of Murtagh v. Leibowitz, 303 N.Y. 311, 101 N.E.2d 753; Matter of Hogan v. Court of Gen. Sessions of County of N.Y., 296 N.Y. 1, 68 N.E.2d 849; see also Matter of Lee v. County Ct. of Erie County, 27 N.Y.2d 432, 318 N.Y.S.2d 705, 267 N.E.2d 452). However, on the record before us, I cannot conclude that the relators have established that the remaining counts of the indictment involve the suppressed evidence. Accordingly, the writs should be dismissed and relators left to pursue their claims on appeal should a conviction be had. I am also of the view that the District Attorney's statement pursuant to section 518--a of the Code of Criminal Procedure does not estop him from proceeding on any counts of the indictment which do not involve the suppressed evidence. That section bars only 'the filing of any criminal charge * * * involving the property in question, and * * * the prosecution of any existing criminal charge against the moving party involving the property * * * in question.' Accordingly, the filing of a statement pursuant to section 518--a, to enable the People to appeal from an order suppressing evidence, bars only further prosecution of those...