Friess v. Morgenthau

• Citation: 383 N.Y.S.2d 784,86 Misc.2d 852
• Parties: Application of Alan FRIESS, on Behalf of Anthony Castellano, Petitioner, v. Hon. Robert MORGENTHAU, District Attorney, New York County, Respondent, For an Order Pursuant to Article 78, C.P.L.R.
• Decision Date: 16 September 1975
• Court: New York Supreme Court

Page 784

383 N.Y.S.2d 784

86 Misc.2d 852

Application of Alan FRIESS, on Behalf of Anthony Castellano Petitioner, v. Hon. Robert MORGENTHAU, District Attorney, New York County Respondent, For an Order Pursuant to Article 78, C.P.L.R.

Supreme Court, Special Term, New York County, Part I.

Sept. 16, 1975.

William Gallagher, The Legal Aid Society, New York City by Alan I. Friess, New York City, and Mary Grace Diehl, Law Intern, on the brief, for petitioner.

Robert Morgenthau, Dist. Atty., N.Y. County by Roy R. Kulcsar, Asst. Dist. Atty., for respondent.

ARNOLD L. FEIN, Justice:

This is a CPLR Article 78 proceeding in the nature of mandamus to direct the District Attorney to conduct a preliminary hearing with respect to the crimes charged against the petitioner and in the nature of prohibition to stay the District Attorney from presenting evidence against petitioner to the grand jury until after a preliminary hearing is held.

On July 2, 1975, petitioner voluntarily surrendered himself to the police and was charged with homicide and criminal possession of a dangerous weapon. On July 3, 1975, when he was arraigned in Manhattan Criminal Court, the case was adjourned for a preliminary hearing and petitioner was released on his own recognizance. Communication between the defense attorney and the District Attorney's office indicates that the District Attorney does not intend to go forward with a preliminary hearing, but rather intends to present the case to the grand jury.

In determining whether an Article 78 proceeding lies to mandate a preliminary hearing and to prohibit presentation to the grand jury the questions are: (1) whether petitioner has a right to a preliminary hearing; and (2) whether the court has power to prevent the District Attorney from presenting evidence to a grand jury on the ground that a preliminary hearing must first be held.

An Article 78 proceeding will not lie to review the exercise of discretion in criminal cases (Bloeth v. Marks, 20 A.D.2d 372, 247 N.Y.S.2d 410, lv. den. 15 N.Y.2d 481, 255 N.Y.S.2d 1025, 203 N.E.2d 800; Russell v. County Court, Chemung Co., 40 A.D.2d 615, 335 N.Y.S.2d 677; Ward v. McQuillan, 40 A.D.2d 974, 339 N.Y.S.2d 427; Wilson v. Galluci, 32 A.D.2d 784, 302 N.Y.S.2d 322). Mandamus will issue only where there is a clear showing of arbitrary and illegal action, without reasonable explanation or excuse (Matter of Butts, 37 A.D.2d 607, 323 N.Y.S.2d 619). It is not available to entertain a collateral proceeding to review an order of law in a pending criminal action, however egregious and however unreviewable (Matter of State v. King, 36 N.Y.2d 59, 364 N.Y.S.2d 879, 324 N.E.2d 351). As that case holds, mandamus or prohibition lies only where there is a clear legal right, or where the action taken or threatened is clearly without jurisdiction or in excess of jurisdiction. Non-reviewability by way of appeal alone does not warrant such a collateral attack. The question therefore is whether defendant has a clear legal right to the relief requested.

Petitioner contends he has a constitutional and statutory right to a preliminary hearing. Although there are intimations that a contrary rule may be emerging (Coleman v. Alabama, 399 U.S. 1, 10, 90 S.Ct. 1999, 26 L.Ed.2d 387 holding a preliminary hearing a 'critical stage' of a criminal action; cf. People v. Robinson, 77 Misc.2d 1081, 354 N.Y.S.2d 785), the law is well settled in New York that there is no constitutional right to a preliminary hearing (People v. Abbatiello, 30 A.D.2d 11, 289 N.Y.S.2d 287; People v. Carter, 73 Misc.2d 1040, 343 N.Y.S.2d 431; People v. Belmont, 48 Misc.2d 1057, 266 N.Y.S.2d 752).

Although there is no constitutional right to a preliminary hearing, C.P.L., Article 180, directs such a hearing. As stated in People v. Johnson, N.Y.L.J., May 22, 1975, p. 15, col. 8 (McQuillan, J.), at p. 16, col. 8:

'It should also be observed that C.P.L. Article 180 requires, except for exigent reasons, a preliminary hearing on a felony complaint within three days of arraignment. * * * Article 180 prescribes no exception for homicide charges. The practice in this county is routinely to deny a preliminary hearing in all homicide cases.'

C.P.L., Section 180.10, provides:

'2. The defendant has a right to a prompt hearing upon the issue of whether there is sufficient evidence to warrant the court in holding him for the action of the grand jury.

'4. The court must inform the defendant of all rights specified in subdivisions two and three. The court must accord the defendant opportunity to exercise such rights and must itself take such affirmative action as is necessary to effectuate them.' (Emphasis added).

This statutory language appears to be mandatory. Moreover, C.P.L., Section 180.60, prescribing the conduct of such a hearing, directs:

'1. The district attorney Must conduct such hearing on behalf of the people.' (Emphasis added.)

There is similar mandatory language throughout C.P.L., Article 180. The elaborate scheme of the article indicates a legislative intention to require a prompt and full hearing unless waived by the defendant. There appears to be no room for the exercise of discretion.

However, C.P.L., Section 190.55, subd. 2(c), authorizes the district attorney to submit to a grand jury 'available evidence concerning an offense prosecutable in the courts of the county * * *.' This would appear to vest discretion in the district attorney to proceed by presentation to the grand jury rather than by preliminary hearing. It is commonplace that many criminal prosecutions begin in this manner, by presentation to the grand jury and indictment prior to the arrest or surrender of the defendant.

Moreover, the failure to afford a defendant a preliminary hearing will not vitiate an indictment or a subsequent conviction, whether by plea or upon a trial (People v. Tornetto, 16 N.Y.2d 902, 264 N.Y.S.2d 557, 212 N.E.2d 63; Peo. ex rel. Hirschberg v. Close, 1 N.Y.2d 258, 152 N.Y.S.2d 1, 134 N.E.2d 818; People v. Abbatiello, supra; People v. Carter, supra; People v. Belmont, supra; People v. Jackson, 48 Misc. 1026, 266 N.Y.S.2d 481). As these and other cases hold, it is immaterial that the indictment was obtained after arraignment or while the preliminary hearing was pending. By implication, C.P.L., Sections 180.80(2) and 190.50(5)(a) give recognition to the validity of such procedure.

C.P.L., Section 180.80(2), provides that a defendant who has been held in custody on a felony complaint more than seventy-two hours without a disposition of the complaint, or the 'commencement of a hearing thereon', must be released on his own recognizance, unless in the interim he has been indicted by a grand jury or the grand jury has directed the filing of a prosecutor's information against him. This petitioner has been released on his own recognizance. Thus, he has the benefit of all the relief he would have been entitled to had he been held in custody for seventy-two hours, without a preliminary hearing.

The courts have recognized the power of the district attorney to present the evidence to the grand jury after arraignment, even in the absence of a preliminary hearing, or while it is pending. (People v. Dillon, 197 N.Y. 254, 90 N.E. 820; People ex rel. Lemmon v. Supreme Court, 245 N.Y. 24, 156 N.E. 84; People ex rel. Hirschberg v. Close, supra; People v. Abbatiello, supra.) Accordingly, prohibition will not lie against the district attorney to preclude presentation to the grand jury.

Although a preliminary hearing may serve other purposes, i.e., (1) expose weaknesses in the prosecution's case; (2) lay the groundwork for impeachment of prosecution's witnesses at trial; (3) result in a plea; (4)...