Haggerty v. Himelein
| Decision Date | 31 May 1996 |
| Citation | 644 N.Y.S.2d 934,221 A.D.2d 138 |
| Parties | Matter of Kerrie L. HAGGERTY, on Behalf of Herself and Shane Appleby and Matthew J. Swetland, Shawn Appleby, Cory Shea, Brian E. Mooney, John L. Reynolds, Sandra S. Haggerty and Troy A. Fusco, Petitioners, v. Honorable Larry M. HIMELEIN, Cattaraugus County Court Judge, Honorable Michael P. Nevins, Cattaraugus County District Attorney, Honorable Dennis C. Vacco, New York State Attorney-General, and Rick Goodell, Assistant New York State Attorney-General, Respondents. |
| Court | New York Supreme Court — Appellate Division |
Lipsitz, Green, Fahringer, Herbert L. Greenman, Buffalo, for Shawn Appleby and another, Petitioners.
Mark Lubet, Orlando, Florida for Petitioner Cory Shea.
Thomas Eoannou, Buffalo, for Petitioner Brian E. Mooney.
Thomas C. Brady, Salamanca, for Petitioner John L. Reynolds.
Andrew C. Lo Tempio, Buffalo, for Petitioner Sandra Sue Haggerty.
Lipsitz, Green, Fahringer (Cheryl Meyers, of counsel), Buffalo, for Petitioner Troy Fusco.
Rick Goodell, Assistant Attorney General by Robert Isaac, Department of Law, Buffalo; Dennis C. Vacco, Attorney-General, for Respondent Hon. Larry M. Himelein.
Michael Nevins by Dennis Tobolski, District Attorney's Office, Little Valley, for Respondent Michael Nevins.
Before DENMAN, P.J., and PINE, FALLON, BALIO and BOEHM, JJ.
In this original CPLR article 78 proceeding, petitioners seek a judgment prohibiting respondents from proceeding on Cattaraugus County indictment No. 95-168, and further seek dismissal of that indictment. Petitioners are charged in that indictment with various counts of murder, manslaughter, and assault in connection with the death of Kevin King on October 23, 1994 in Olean. Respondents are Honorable Larry M. Himelein, Cattaraugus County Court Judge; Honorable Michael P. Nevins, Cattaraugus County District Attorney; Honorable Dennis C. Vacco, New York State Attorney-General; and Rick Goodell, New York State Assistant Attorney-General. The primary issue in this proceeding is whether the Attorney-General and his assistants (the Attorneys-General) may intervene in a criminal prosecution at the invitation of the Cattaraugus County Legislature and District Attorney, but without the authorization of the Governor. Additionally, we must decide whether this Court has subject matter jurisdiction and whether prohibition is an appropriate remedy.
Twenty-eight-year-old Kevin King died in the early morning hours of October 23, 1994. According to eyewitnesses, King was attacked by a mob outside a pizzeria in Olean. As King lay unconscious on the ground, his assailants, who allegedly included petitioners, continued to beat and kick him. An initial autopsy was performed by Dr. Justin Uku, who apparently was not told that the victim had been beaten and kicked, but instead was told that he had suffocated under a "pile-on" of individuals. Dr. Uku concluded that King had died accidentally of traumatic asphyxiation and apparently so testified before a Cattaraugus County Grand Jury, which considered the case in February 1995. In addition, the Grand Jury heard the testimony of at least seven eyewitnesses, including two who knew the names of all of the assailants, but who unaccountably were not asked to identify them. Consequently, the Grand Jury failed to indict anyone in King's death.
Thereafter, King's family alleged that the investigation had been mishandled by the Cattaraugus County Sheriff's Department and the District Attorney, and publicly asked the Governor, the Attorney-General, and the State Police to intervene. On March 8, 1995, the Cattaraugus County Legislature requested that the Attorney-General "provide assistance into the inquiry concerning the death of Kevin King." That request apparently was seconded by the District Attorney. On March 24, 1995, the Attorney-General agreed to intervene. Thereafter, he and four Petitioners allege, upon information and belief, that the Attorneys-General have controlled the investigation to the exclusion of the District Attorney and his assistants. The Attorneys-General and District Attorney deny that allegation and assert that all actions of the Attorneys-General have been taken under the "aegis, direction and control of the District Attorney." The record is ambiguous on that point. It establishes that, after State Police began to question numerous witnesses, the District Attorney applied for an exhumation order, which was granted on March 28, 1995. King's body was disinterred and a second autopsy performed on April 17, 1995 by Dr. Michael Baden, Director of the Forensic Sciences Unit of the State Police, in the presence of the District Attorney, two Assistant Attorneys-General, and numerous State Police officers. Dr. Baden concluded that the cause of death was
of his assistants, none of whom resides [221 A.D.2d 141] in Cattaraugus County, executed oaths of office as Assistant District Attorneys. Those oaths of office were subscribed and sworn to before the District Attorney, who caused them to be filed in the office of the Cattaraugus County Clerk. It is undisputed that there is no Executive Order authorizing the appearance of the Attorneys-General in this matter.
Subsequently, Assistant Attorney-General Battle, purportedly acting as "Assistant District Attorney for Cattaraugus County", applied to County Court for leave to resubmit the case to a second Grand Jury pursuant to CPL 190.75(3). On October 2, 1995, Judge Himelein granted the application in a decision and order issued to the District Attorney, Attorney-General Vacco and Assistant Attorney-General Battle, the latter two in their purported capacities as "Assistant District Attorney[s] for Cattaraugus County." Thereafter, Assistant Attorney-General McGrier, purportedly "[a]cting as Assistant District Attorney," issued various Grand Jury subpoenas in the names of the District Attorney and the Attorney-General.
The case was presented to a second Grand Jury by Assistant Attorney-General Goodell. The District Attorney was not present before the second Grand Jury. On the other hand, the District Attorney met with "Assistant District Attorney" Goodell to discuss the Grand Jury evidence, legal instructions and possible charges; scheduled the Grand Jury sessions; and had his subordinates prepare the indictment. That 42-count indictment, returned by the second Grand Jury on November 30, 1995, variously charges petitioners with murder, manslaughter, criminally negligent homicide, and assault. The District Attorney personally delivered the indictment to Acting County Court Judge Nenno and personally conducted most of the arraignments of petitioners. Subsequently, CPL 710.30 notices were served in the name of "Rick Goodell, Acting Assistant District Attorney, County of Cattaraugus." Petitioners assert that all discovery has been obtained from Goodell, that all of their discussions about the case have been with Goodell, and that all correspondence from the People has been drafted on the Attorney-General's letterhead.
In late January and early February 1996, several petitioners moved to dismiss the indictment pursuant to CPL 210.20(1)(c) on the ground that the Grand Jury proceeding was defective within the meaning of CPL 210.35(5). The movants alleged that the Attorneys-General had no power to prosecute the action and that Assistant Attorney-General Goodell was not a person authorized to be present in the Grand Jury room pursuant to CPL 190.25(3).
Simultaneously, petitioners commenced this CPLR article 78 proceeding seeking a writ of prohibition. The petition alleges that County Court Judge Himelein has acted in excess of his jurisdiction by granting the Attorneys-General permission to resubmit the case to a second Grand Jury, and by presiding over this prosecution by the Attorneys-General, each of whom lacks constitutional and statutory power to prosecute the case; that the District Attorney has acted in excess of his jurisdiction by improperly delegating his authority to prosecute the case to the Attorneys-General; and that the Attorneys-General have acted in excess of their jurisdiction by intervening in the case without an Executive Order and by acting as The Attorneys-General submitted an answer, as did the District Attorney. Judge Himelein has not submitted an answer. The Attorneys-General seek dismissal on the grounds that this Court lacks jurisdiction, and that prohibition does not lie in these circumstances. The District Attorney seeks dismissal on the ground that petitioners have failed to assert a substantial right or interest, or a clear right to relief. The District Attorney further asserts that he is properly prosecuting the criminal action, properly appointed the Attorneys-General as Assistant District Attorneys, and is properly supervising them.
Assistant District Attorneys in an attempt to circumvent the Executive Law. Petitioners seek an order prohibiting Judge Himelein from "proceeding not only with the trial of this indictment, but from conducting any further proceedings involving this case"; prohibiting the District Attorney from "proceeding with not only the trial of this indictment but any matters relating thereto"; and prohibiting the Attorneys-General from "prosecuting, investigating, or proceeding in any manner with this indictment."
A proceeding against a body or officer generally must be commenced in Supreme Court (see, CPLR 7804[b]; see also, CPLR 506[b] ). Where prohibition is sought against a Justice of the Supreme Court or a Judge of the County Court, however, it must be commenced in the Appellate Division in the judicial department where the underlying action is triable (see, CPLR 506[b][...
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