Holtzman v. Goldman

• Decision Date: 26 April 1988
• Citation: 71 N.Y.2d 564,523 N.E.2d 297,528 N.Y.S.2d 21
• Parties: , 523 N.E.2d 297 In the Matter of Elizabeth HOLTZMAN, Appellant, v. Richard GOLDMAN, as Justice of the Supreme Court of the State of New York, et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 21

528 N.Y.S.2d 21

71 N.Y.2d 564, 523 N.E.2d 297

In the Matter of Elizabeth HOLTZMAN, Appellant, v. Richard GOLDMAN, as Justice of the Supreme Court of the

State of New York, et al., Respondents.

Court of Appeals of New York.

April 26, 1988.

Elizabeth Holtzman, Dist. Atty. (Janet M. Berk and Barbara D. Underwood, Brooklyn, of counsel), pro se.

Robert Abrams, Atty. Gen. (Darren O'Connor, O. Peter Sherwood and Lawrence S. Kahn, New York City, of counsel), for Richard Goldman, respondent.

OPINION OF THE COURT

SIMONS, Judge.

This appeal questions whether a Judge presiding over a criminal prosecution has the power to dispose of the matter before him by entering a nonappealable trial order of dismissal on the merits even though no evidence is presented and the merits of the case have not yet been heard. The question arises because on the day this case was scheduled for trial, the People were unable to locate the complaining witness and requested a further adjournment. The court denied the request, ordered the People to start trial immediately and when they were unable to do so, dismissed the charges and discharged the defendant. We hold that the court exceeded its power when it did so and that prohibition is available to correct its order.

I

In August 1985, Mahmoud Shahhosseini, an Iranian national undergoing medical treatment in New York, paid defendant Richard Babayan 36,250 West German deutschmarks in exchange for Babayan's check of $13,595.50. When Shahhosseini presented the check, payment was refused. Shahhosseini asked defendant to make the check good. He claims that defendant refused, telling him he was a member of the Iranian secret police and threatening to retaliate against him if he pursued the matter with the authorities. Disregarding the warning, Shahhosseini filed a complaint with the police and they arrested defendant on November 7, 1985.

The case was adjourned with defendant's consent or approval until an indictment was returned on May 30, 1986 charging him with second degree grand larceny and second degree criminal possession of a forged instrument. The People answered ready July 1, pretrial proceedings followed and defendant answered ready on October 16. Shahhosseini was in Iran at that time and defendant consented to an adjournment until November 10, 1986 to give the People an opportunity to produce him.

When the case was called on November 10, the People advised the court that they had not located complainant, although his family had been contacted and had told the District Attorney that he was "interested in prosecuting th[e] case." Defense counsel then advised the court that his client believed the complainant had been jailed in Iran on drug charges. The claim was false, but when the People were unable to disprove it at the November 10 proceeding, the trial court expressed its belief that there was no extradition treaty between the United States and Iran, noted that defendant was a resident of Washington, D.C., who had been compelled to appear in Brooklyn several times in response to the charges, and concluded that he should not be required to appear further based on the "vague hopes" that the People would produce the complainant in the future. The court recognized that it could not dismiss the indictment, but suggested that it would order an immediate trial if defendant would waive his demand for suppression hearings and for a jury trial. Defendant quickly did so.

The People protested, stating that they were "not prepared to go to trial" and that the court's actions constituted an improper attempt at calendar control ( see, People v. Douglass, 60 N.Y.2d 194, 469 N.Y.S.2d 56, 456 N.E.2d 1179). The court nevertheless dismissed the indictment, stating that its dismissal was founded upon "basic equity" principles, the People's "failure to produce * * * the complaining witness, after being ordered to do so and being given a month's adjournment to do so," and the prosecution's inability to proceed with its case. On November 18, 1986, the court executed an order which recited that the dismissal was ordered pursuant to CPL 290.10. That section provides that "[a]t the conclusion of the people's case or at the conclusion of all the evidence, the court may * * * upon motion of the defendant, * * * issue a 'trial order of dismissal' " (CPL 290.10[1][a] ).

The People subsequently instituted this article 78 proceeding in the Appellate Division seeking to prohibit enforcement of the trial court's order. ¹ The Appellate Division found prohibition appropriate to review the trial court's actions but held that the trial court had exercised its discretion properly in refusing a further adjournment because the People failed to establish that they exercised due diligence in attempting to locate the complainant.

On this appeal, the People acknowledge that the trial court had the power to grant or deny a further adjournment ( see, People v. De Rosa, 42 N.Y.2d 872, 397 N.Y.S.2d 780, 366 N.E.2d 868). They question only its authority to enter a nonappealable trial order of dismissal, purportedly based upon a review of the merits of their case, when they did not present any evidence.

II

When a petitioner seeks relief in the nature of prohibition pursuant to CPLR 7803(2), the court must make a two-tiered analysis. It must first determine whether the issue presented is the type for which the remedy may be granted and, if it is, whether prohibition is warranted by the merits of the claim.

A

Because of its extraordinary nature, prohibition is available only where there is a clear legal right, and then only when a court--in cases where judicial authority is challenged--acts or threatens to act either without jurisdiction or in excess of its authorized powers ( Matter of Rush v Mordue, 68 N.Y.2d 348, 352, 509 N.Y.S.2d 493, 502 N.E.2d 170; Matter of Steingut v. Gold, 42 N.Y.2d 311, 315, 397 N.Y.S.2d 765, 366 N.E.2d 854; Matter of Dondi v. Jones, 40 N.Y.2d 8, 13, 386 N.Y.S.2d 4, 351 N.E.2d 650). The inquiry is not limited to whether the court has subject matter jurisdiction over the proceeding; "prohibition is [also] available * * * to prevent a court from exceeding its authorized powers in a proceeding over which it has jurisdiction" ( La Rocca v. Lane, 37 N.Y.2d 575, 578-579, 376 N.Y.S.2d 93, 338 N.E.2d 606, cert. denied 424 U.S. 968, 96 S.Ct. 1464, 47 L.Ed.2d 734; see also, Matter of Proskin v. County Ct., 30 N.Y.2d 15, 18, 330 N.Y.S.2d 44, 280 N.E.2d 875; see generally, Comment, Writ of Prohibition in New York--Attempt to Circumscribe an Elusive Concept, 50 St. John's L.Rev. 76, 76-84; Wolfram, "Ancient and Just" Writ of Prohibition in New York, 52 Colum.L.Rev. 334, 338-353). Thus, we have entertained prohibition to determine whether the court had exceeded its undoubted powers to control the conduct of counsel in the courtroom (see, La Rocca v. Lane, supra ) or to rule upon the sufficiency of Grand Jury evidence (Matter of Proskin v. County Ct., supra ).

Prohibition will not lie, however, simply to correct trial errors ( Matter of Rush v. Mordue, supra, 68 N.Y.2d at 353, 509 N.Y.S.2d 493, 502 N.E.2d 170). Although the distinction between legal errors and actions in excess of power is not always easily made (see, La Rocca v. Lane, supra, 68 N.Y.2d at 580, 509 N.Y.S.2d 493, 502 N.E.2d 170, abuses of power may be identified by their impact upon the entire proceeding as distinguished from an error in a proceeding itself proper Matter of State of New York v. King, 36 N.Y.2d 59, 64, 364 N.Y.S.2d 879, 324 N.E.2d 351; see, e.g., Matter of Rush v. Mordue, supra [double jeopardy]; Matter of Steingut v. Gold, 42 N.Y.2d 311, 397 N.Y.S.2d 765, 366 N.E.2d 854 supra [territorial jurisdiction over crime] ).

Finally, even if prohibition lies and an act in excess of power is perceived, the remedy is not granted as of right but only in the sound discretion of the reviewing court ( Matter of Rush v. Mordue, 68 N.Y.2d 348, 354, 509 N.Y.S.2d 493, 502 N.E.2d 170, supra; Matter of Dondi v. Jones, 40 N.Y.2d 8, 13, 386 N.Y.S.2d 4, 351 N.E.2d 650, supra; La Rocca v. Lane, 37 N.Y.2d 575, 579, 376 N.Y.S.2d 93, 338 N.E.2d 606, supra ). The courts are most reluctant to entertain prohibition when doing so interferes with normal trial and appellate procedures by permitting collateral review of matters which could be cured upon direct appeal ( Matter of Rush v. Mordue, supra, 68 N.Y.2d at 353, 509 N.Y.S.2d 493, 502 N.E.2d 170; Matter of State of New York v. King, supra, 36 N.Y.2d at 62-63, 364 N.Y.S.2d 879, 324 N.E.2d 351; Matter of Nigrone v. Murtagh, 36 N.Y.2d 421, 426, 369 N.Y.S.2d 75, 330 N.E.2d 45). The appealability or nonappealability of an issue is not dispositive, however (see, e.g., Matter of State of New York v. King supra [prohibition found not to lie even though trial court's decision to afford an unauthorized number of peremptory challenges to defendant might be insulated from appellate review] ).

Applying these rules, the People are entitled to review of their claim in this proceeding. The trial court's dismissal here, if erroneous, was not merely a legal mistake, it related to the power of the court and affected the entire proceeding in the most conclusive manner; it terminated the case. ² While the court based its dismissal on insufficient evidence it, in effect, found the People in default and sua sponte dismissed the indictment, and the question is whether it had the power to enter a default in a criminal proceeding.

B

The power of the trial court to deny the People further adjournment is not disputed; the error lies in the corrective action it took after it did so. Trial courts are vested with statutory power to dismiss indictments, of course, but the power is not unlimited. The court "has power to do for some purposes what it lacks power to do for others" ( Matter of Proskin v. County Ct., 30 N.Y.2d 15, 20, 330 N.Y.S.2d 44, 280 N.E.2d 875 supra ). Thus, it is no answer to assert that because the court can...