Hassan v. Magistrates Court of City of New York

• Citation: 20 Misc.2d 509,191 N.Y.S.2d 238
• Parties: . Murtaugh, Chief Magistrate of the City of New York, and Frank D. O'Connor, District Attorney of Queens County. Supreme Court, Special Term, Queens County, Part I
• Decision Date: 08 September 1959
• Court: United States State Supreme Court (New York)

Page 238

191 N.Y.S.2d 238

20 Misc.2d 509

Application of John P. HASSAN v. MAGISTRATES COURT OF CITY OF NEW YORK, John M. Murtaugh Chief Magistrate of the City of New York, and Frank D. O'Connor, District Attorney of Queens County.

Supreme Court, Special Term, Queens County, Part I.

Sept. 8, 1959.

John P. Hassan, in pro. per.

Louis J. Lefkowitz, Atty. Gen., Irving L. Rollins, Asst. Atty. Gen., of counsel, for respondents.

J. IRWIN SHAPIRO, Justice.

This proceeding is brought by the petitioner for an order in the nature of mandamus, pursuant to the provisions of the Civil Practice Act, Article 78, directed against the respondents, the Magistrates Court of the City of New York, Honorable John M. Murtaugh, its Chief Magistrate and Frank D. O'Connor, District Attorney of Queens County, commanding them 'to arrest William Lomnicky (a New York City Police Officer) on the complaint of John P. Hassan (petitioner) for having committed perjury in the first degree and to institute and prosecute the charges against him as they are enjoined to do by law.'

The petitioner was convicted on May 22, 1957, after trial in the North Queens District of the Magistrates' Court of the City of New York of one of three traffic violations with which he was charged. The petitioner maintains that such conviction was effected by the perjured testimony given by William Lomnicky, the complainant, at such trial.

On March 7, 1958, petitioner's conviction was affirmed on appeal by the Appellate Part of the Court of Special Sessions and leave to further appeal to the Court of Appeals was denied by that Court on July 18, 1958.

A motion by him for a new trial was denied on December 24, 1958,

On May 2, 1959, the petitioner brought on a motion before respondent John M. Murtaugh, the Chief Magistrate of the City of New York, predicated on a written notice of motion and supporting moving affidavit served upon the respondent Frank D. O'Connor, the District Attorney of Queens County, for an order directing said District Attorney to prosecute the said William Lomnicky for prejury and other related crimes allegedly committed by him at the trial which culminated in petitioner's conviction.

On May 8, 1959, Chief City Magistrate John M. Murtaugh denied petitioner's motion on the grounds of 'Defective Venue and Lack of Facts'. Petitioner's subsequent motion for leave to appeal therefrom to the Appellate Division of the Supreme Court was dismissed by that Court on July 14, 1959, People ex rel. Hassan v. Lomnicky, 191 N.Y.S.2d 144.

In McDonald v. Sobel, 272 App.Div. 455, 461, 72 N.Y.S.2d 4, 9, affirmed 297 N.Y. 679, 77 N.E.2d 3, the Appellate Division, Second Department, said:

'At common law no part of the power to accuse a person of crime or to prosecute a person for crime was vested in a court. These powers were vested elsewhere. The power to prosecute crime and control the prosecution, after formal accusation had been made, was reposed in a prosecuting officer, an attorney-general or a district attorney. When the Code of Criminal Procedure was enacted, declaratory for the most part of the common law, this allocation of power was continued. * * *'

It follows, therefore, that the courts will not grant mandamus to compel a magistrate or police justice to issue a warrant, 'no matter how clear the case may seem to the Court.' Restivo v. Degnan, 191 Misc. 642, 646, 77 N.Y.S.2d 563, 568; People ex rel. Lindgren v. McGuire, 151 App.Div. 413, 136 N.Y.S. 88.

Clearly, therefore, the power to cause the arrest and prosecution of William Lomnicky for the crime of perjury or any other related crime, as sought by petitioner, is vested solely in the respondent Frank D. O'Connor, District Attorney of Queens County. Under the circumstances, the respondents, the Magistrates' Court of the City of New York and John M. Murtaugh, its Chief Magistrate, may not be directed to usurp the functions of the District Attorney to arrest and prosecute William Lomnicky of the crime of perjury or any other related crime (McCraw v. Finegan, 243 App.Div. 778, 277 N.Y.S. 543; Bailey v. Kern, 177 Misc. 904, 32 N.Y.S.2d 386) and the application in that regard must be and is denied.

As a basic incident of our form of government, with its divided powers and responsibilities lodged in the executive, legislative and judicial branches, and as a self-imposed rule of judicial restraint, the courts should not interfere with the discretion lodged in prosecuting officials such as a district attorney or the Attorney General to institute criminal proceedings.

In the field of criminal law, the boundaries of the respective spheres of the three branches of government are clearly defined. The legislature makes the law and defines the offense. The executive authority executes and enforces the law. Acting through a district attorney or the Attorney General, the charge of violation of law is formulated and the criminal proceeding initiated. It is then for the judiciary to interpret and apply the law in the particular case where the charge is made.

Each function is separate and distinct. Each branch of government is burdened with its own responsibility and the judicial branch under ordinary circumstances should not sit in judgment on the discretion lodged in the others.

It is apparent from the papers before the court that the District Attorney gave serious and earnest consideration to the merits of petitioner's complaint and the wisdom of starting criminal prosecution against the said William Lomnicky and that for reasons that to him seemed justifiable, he came to the conclusion that no such prosecution should be instituted.

The courts have time and again refused to interfere with prosecuting attorneys who in the exercise of discretion have determined not to institute prosecutions or determined that they would prosecute for one crime and not another. Thus in People v. Florio, 301 N.Y. 46, 53, 92 N.E.2d 881, 885, 17 A.L.R.2d 993, the Court said:

'* * * However, the District Attorney may possibly have avoided asking the Grand Jury to indict the defendants for abduction in addition to kidnapping, * * *. In any event, the District Attorney of a county, familiar with the conditions there and responsible to the People of the county, has the duty of recommending to the Grand Jury indictment for the crime or crimes which the protection of the community requires and we are not here to determine that for him. * * *' (Italics ours.)

In Leone v. Fanelli, 194 Misc. 826, 87 N.Y.S.2d 850, 851, and Article 78 proceeding was instituted to compel the District Attorney to prosecute indictments which had been handed down against third parties. In denying the application, the Court, after noting that it is the District Attorney's 'duty to prosecute crimes within the county for which he is elected,' said:

'This duty, although not judicial and purely executive, is one calling for the exercise of discretion and the pursuit of some fixed enforcement policy which it is not the function of the Courts to supervise. A specific act which the District Attorney might by law be required to perform involving no special exercise of discretion and necessary for the satisfaction of some personal right of a petitioner could, undoubtedly, be required. But the general duty to prosecute all crimes or the special duty to prosecute a particular crime may not be required or supervised.' (Italics ours.)

In similar vein in People v. Brady, 257 App.Div. 1000, 13 N.Y.S.2d 789, 790, in which the Appellate Division, Second Department, was urged to hold that the prosecution was a needless one and should be halted, the Court, in holding that the power of determination whether to go forward or not to go forward with a prosecution was in the District Attorney and not the Court, said:

'* * * That it would be inexpedient to proceed to trial because of needless expense and loss of time is a responsibility with which the District Attorney must deal.'

In McDonald v. Goldstein, 191 Misc. 863, 83 N.Y.S.2d 620, 622, affirmed 273 App.Div. 649, 79 N.Y.S.2d 690, the lower Court, in writing of the powers and duties of a prosecuting officer, said:

'In his official capacity he has the power to withhold prosecution forever.'

The Courts have not only refused to interfere with or control the discretion exercised by a district attorney or the Attorney General in the cases of crimes, but in related matters such as 'public offenses.'

Thus, in People ex rel. Peabody v. Attorney General, 22 Barb. 114, expressly approved by the Court of Appeals in People ex rel. Demarest v. Fairchild, 67 N.Y. 334, the Court, after defining usurpation of office as a 'public offense,' and the remedy as a 'public prosecution, instituted and conducted by the public prosecutor,' said:

'* * * The power of determining whether the action shall be commenced must exist somewhere. * * * Our legislature has seen fit to invest the attorney general with this discretion. His office is a public trust. It is a legal presumption that he will do his duty; that he will act with strict impartiality. In this confidence he has been endowed with a large discretion, not only in cases like this, but in other matters of public concern. The exercise of such discretion is, in its nature, a judicial act, from which there is no appeal, and over which courts have no control. * * *' (Italics ours.)

In the Lewis v. Goldstein, 280 App.Div. 769, 113 N.Y.S.2d 675, motion for leave to appeal dismissed, 304, N.Y. 739, 108 N.E.2d 405, a case on all fours, the Appellate Division, First Department, without opinion, affirmed an order of the Special Term, New York County, which dismissed a petition which sought an order commanding the respondents, including the Attorney General, to institute criminal proceedings against a third party, one Goldstone, on a charge that his activities constituted the unlawful practice of medicine within the meaning and intendment of the Education Law, Article 131. In dismissing...