Forte v. Supreme Court of State of N. Y.

• Decision Date: 23 October 1979
• Citation: 397 N.E.2d 717,422 N.Y.S.2d 26,48 N.Y.2d 179
• Parties: , 397 N.E.2d 717 In the Matter of Alfred FORTE, Respondent, v. SUPREME COURT OF the STATE OF NEW YORK et al., Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 26

422 N.Y.S.2d 26

48 N.Y.2d 179, 397 N.E.2d 717

In the Matter of Alfred FORTE, Respondent, v. SUPREME COURT OF the STATE OF NEW YORK et al., Appellants.

Court of Appeals of New York.

Oct. 23, 1979.

John J. Santucci, Dist. Atty. (Barry A. Schwartz, Rockville Centre, of counsel), for John J. Santucci, appellants.

Frank S. Polestino, Jamaica, and John T. Gallager, Flushing, for respondent.

OPINION OF THE COURT

GABRIELLI, Judge.

Whenever a criminal defendant's pretrial motion to suppress evidence is granted, CPL 450.20 (subd. 8) authorizes the People to appeal that determination to an intermediate appellate court provided that the People first file "a statement asserting that the deprivation of the use of the evidence ordered suppressed has rendered the sum of the proof available to the people with respect to a criminal charge which has been filed in the court either (a) insufficient as a matter of law, or (b) so weak in its entirety that any reasonable possibility of prosecuting such charge to a conviction has been effectively destroyed" (CPL 450.50, subd. 1). If such an appeal is unsuccessful and the order suppressing the evidence is not overturned by an appellate court, the taking of the appeal then "constitutes a bar to the prosecution of the accusatory instrument involving the evidence ordered suppressed" (CPL 450.50, subd. 2).

In this article 78 proceeding, we are presented with the novel claim that this statutory scheme permits the People, after taking an unsuccessful appeal from an order suppressing evidence, to obtain a superseding indictment charging the same defendant with the same crimes contained in the first indictment, and to then prosecute that defendant pursuant to the new indictment. For the reasons discussed below, we hold that CPL 450.50 (subd. 2) constitutes a bar to the prosecution of such a defendant for the crimes charged in the original indictment, and that this prohibition may not be evaded by obtaining a superseding indictment charging the defendant with the commission of those same crimes, at least in the absence of exceptional circumstances not here present. ¹

The relevant facts underlying this appeal are uncomplicated and undisputed. In January, 1976, a Queens County Grand Jury handed up an indictment charging petitioner and a codefendant with four counts of murder in the second degree. Petitioner made a pretrial motion to suppress certain statements he allegedly had made to the authorities, and that motion was granted by Supreme Court, Queens County. The People appealed to the Appellate Division after filing a statement declaring that " 'the deprivation of the use of the evidence suppressed has rendered the sum of the proof available to the People with respect to the crime charged in the indictment so weak in its entirety that any reasonable possibility of prosecuting such charge to a conviction has been effectively destroyed' ". The Appellate Division affirmed the order suppressing the statements, 62 A.D.2d 704, 406 N.Y.S.2d 854, and the People were denied leave to appeal to this court.

Petitioner then moved in Supreme Court to dismiss the indictment. On the return date of the motion to dismiss, the People raised no objection to the dismissal of the indictment, but informed the court and the petitioner that the Grand Jury had issued a superseding indictment charging petitioner with the same crimes charged in the original indictment. The court dismissed the first indictment, but refused to dismiss the superseding indictment. Petitioner subsequently commenced this article 78 proceeding in the Appellate Division, seeking a writ prohibiting his continued prosecution upon the superseding indictment. The Appellate Division granted the requested writ of prohibition, and respondents now appeal by permission of this court.

Before discussing the merits of this appeal, we must first determine whether the extraordinary remedy of a writ of prohibition lies in a case of this type. We recently declared in Matter of Vega v. Bell, 47 N.Y.2d 543, 546-547, 419 N.Y.S.2d 454, 456-457, 393 N.E.2d 450, 452, that if a petitioner wishes "to raise his claim in the context of an article 78 proceeding seeking the extraordinary remedy of a writ of prohibition, he is subject to the limitations controlling the issuance of such a writ. As we stated in Matter of Dondi v. Jones, 40 N.Y.2d 8, 13, 386 N.Y.S.2d 4, 8, 351 N.E.2d 650, 654: '(T)he extraordinary remedy of prohibition lies only where there is a clear legal right and only when the body or officer "acts or threatens to act without jurisdiction in a matter over which it has no power over the subject matter or where it exceeds 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, 352; 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, 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)' (accord Matter of Jaffe v. Scheinman, 47 N.Y.2d 188, 192-193, 417 N.Y.S.2d 241, 242-243, 390 N.E.2d 1165, 1166-1167; Matter of B. T. Prods. v. Barr, 44 N.Y.2d 226, 231-232, 405 N.Y.S.2d 9, 11-12, 376 N.E.2d 171, 173-174; Matter of Steingut v. Gold, 42 N.Y.2d 311, 315-316, 397 N.Y.S.2d 765, 768-769, 366 N.E.2d 854, 856-857)".

Applying these principles to the case before us, it is readily apparent that all the prerequisites for issuance of a writ of prohibition are present and, thus, if petitioner's substantive arguments are sound, we must conclude that the Appellate Division did not err in issuing the writ. It is the gist of petitioner's argument that as a result of the unsuccessful appeal from the order of suppression, the District Attorney lacked the power to obtain a superseding indictment, the Grand Jury lacked the power to indict the petitioner, and the courts lack the power to try him upon that indictment. So viewed, for purposes of the propriety of the writ of prohibition, petitioner's claim is indistinguishable from the claim asserted by the petitioner in Matter of Vega v. Bell, supra, in which it was claimed that the Grand Jury lacked the power to indict a juvenile unless he was first provided with a removal hearing in a local criminal court. While rejecting the substantive claim asserted in Vega, we concluded that an article 78 proceeding seeking a writ of prohibition was an appropriate means of asserting such a claim, since it was "petitioner's claim that he may not be brought to trial upon the pending indictment because the Grand Jury lacked the power to indict him" (47 N.Y.2d at p. 547, 419 N.Y.S.2d at p. 457, 393 N.E.2d at p. 452). We must reach the same result in the instant appeal, for we can discern no principled distinction between the two claims for purposes of determining the availability of the writ of prohibition. ²

That prohibition is available was foreshadowed by and is not inconsistent with our holding in Matter of Kellog v. Supreme Ct., County of Queens, 29 N.Y.2d 615, 324 N.Y.S.2d 409, 273 N.E.2d 137, in which we affirmed an order of the Appellate Division dismissing a petition seeking to prohibit prosecution of certain charges in an indictment following an unsuccessful appeal by the People from an order suppressing evidence involving one or more charges in that indictment. Our decision in Kellog was premised not upon the assumption that prohibition may never lie to prevent prosecution of a defendant following an unsuccessful appeal by the People from an order suppressing evidence, but rather upon the discretionary nature of the writ of prohibition. As we have previously stated, "(p)rohibition is not mandatory, but may issue in the sound discretion of the court" (La Rocca v. Lane, 37 N.Y.2d 575, 579, 376 N.Y.S.2d 93, 97, 338 N.E.2d 606, 610; see Comment: The Writ of Prohibition in New York Attempt to Circumscribe an Elusive Concept, 50 St. John's L.Rev. 76, 97-98). In Kellog, unlike the present case, the merits of the petitioner's substantive claims were obscured by a variety of collateral issues. There, the petitioner and several others had been charged with certain crimes by a multiple count indictment. Although the People had unsuccessfully appealed from an order suppressing certain evidence related to at least one count in the indictment, it was not evident whether that evidence was in fact relevant to those counts which the People sought to continue to prosecute. Since the language of the statute then in existence barred prosecution only of the "charges" involving the suppressed evidence, and not all the charges contained in the accusatory instrument (see Code Crim.Proc., § 518-a) the applicability of the statutory prohibition in that case was far from clear. Under those circumstances, we were unable to conclude as a matter of law that the Appellate Division had abused its discretion in refusing to issue a writ of prohibition. Had we then concluded that the writ was unavailable as a matter of law, there would have been no occasion to review the exercise of discretion. Here, in contradistinction, the legal issues are clearly and forcefully presented: the determination whether the People have the power to prosecute this petitioner comprises a question of law, resolution of which depends solely upon the proper interpretation of CPL 450.50 (subd. 2), and which does not involve any disputed questions of fact. Hence, this is a proper case for issuance of the extraordinary writ of...