Hussain v. Lynch

• Decision Date: 20 April 2023
• Docket Number: CV-22-2123
• Parties: In the Matter of Nauman Hussain, Petitioner, v. Peter Lynch, as Supreme Court Justice, Respondent.
• Court: New York Supreme Court — Appellate Division

2023 NY Slip Op 02049

In the Matter of Nauman Hussain, Petitioner,
v.
Peter Lynch, as Supreme Court Justice, Respondent.

No. CV-22-2123

Supreme Court of New York, Third Department

April 20, 2023

Calendar Date: February 22, 2023

Tacopina Seigel & DeOreo, New York City (Chad Seigel of counsel) and The Kindlon Law Firm, PLLC, Albany (Lee C. Kindlon of counsel), for petitioner.

Before: Garry, P.J., Egan Jr., Aarons, Reynolds Fitzgerald and Ceresia, JJ.

Ceresia, J.

Proceeding pursuant to CPLR article 78 (initiated in this Court pursuant to CPLR 506 [b] [1]) to, among other things, compel respondent to reinstate petitioner's plea of guilty of the crime of criminally negligent homicide (20 counts).

Petitioner was charged by indictment with 20 counts of manslaughter in the second degree (see Penal Law § 125.15 [1]) and 20 counts of criminally negligent homicide (see Penal Law § 125.10), stemming from an October 2018 incident in Schoharie County during which a stretch limousine owned by petitioner's company sustained a catastrophic brake failure, resulting in a crash that killed the driver, 17 passengers and two pedestrians. In September 2021, the People and petitioner entered into a written plea agreement, pursuant to which petitioner, in full satisfaction of the indictment and subject to court approval, agreed to plead guilty to 20 counts of criminally negligent homicide. In accordance with the plea resolution, petitioner was to be placed on two years of interim probation, during which he was required to complete a total of 1,000 hours of community service. Upon the successful completion of this term of interim probation, petitioner would be sentenced to five years of probation, with credit for the two years served on interim probation, resulting in a remaining period of three years of probation to be served post-sentencing. As set forth in special probation conditions, petitioner would not be permitted to work for any commercial transportation business, and his probation would not terminate early. On September 2, 2021, County Court (Bartlett III, J.) accepted petitioner's guilty plea and placed him on interim probation.

Judge Bartlett subsequently retired, and the case was reassigned to respondent in July 2022. During an appearance before respondent on August 24, 2022, both petitioner and the People conceded that a second year of interim probation was not permissible under the law, as petitioner was not "participating in a treatment program in connection with a court designated a treatment court," a statutory prerequisite to a second year of interim probation (CPL 390.30 [6] [a]). Accordingly, and as petitioner was nearing the end of his first year of interim probation, respondent scheduled sentencing for one week hence. On August 31, 2022, the date of the anticipated sentencing, respondent, finding the plea agreement "fundamentally flawed" and "not based on truth," advised petitioner that he would not abide by the agreement. In reaching this conclusion, respondent stated, among other things, that the plea agreement failed to sufficiently account for evidence suggesting that petitioner had removed an out-of-service sticker from the limousine shortly before the accident, which respondent viewed as an act consistent with the crime of manslaughter in the second degree and inconsistent with the crime of criminally negligent homicide.

Respondent then informed petitioner that he intended to sentence him that day to the maximum allowable term of imprisonment - 1⅓ to 4 years - for each count to which he had pleaded guilty (see Penal Law § 70.00 [2] [e]; [3] [b]). ^[1] Prior to imposing that sentence, however, respondent afforded petitioner an opportunity to confer with counsel to decide whether he wished to move forward or, instead, withdraw his guilty plea. When sentencing proceedings resumed approximately 20 minutes later, and after respondent denied petitioner's request for additional time to assess the situation, petitioner's counsel stated that, "[i]n light of the [c]ourt's position, [petitioner is] impelled" to seek vacatur of the plea, a request that respondent granted. As a result, respondent scheduled the matter for trial on May 1, 2023, prompting petitioner to commence this CPLR article 78 proceeding seeking reinstatement of his guilty plea and the imposition of a sentence in compliance with the plea agreement. For the following reasons, the petition must be dismissed.

To begin with, mandamus to compel does not lie. Mandamus to compel is an extraordinary remedy, commanding "an officer or body to perform a specified ministerial act that is required by law to be performed. It does not lie to enforce a duty that is discretionary" (Alliance to End Chickens as Kaporos v New York City Police Dept., 152 A.D.3d 113, 117 [1st Dept 2017] [citation omitted], affd 32 N.Y.3d 1091 [2018], cert denied ___ U.S. ___, 139 S.Ct. 2651 [2019]; see Matter of Meyer v Zucker, 185 A.D.3d 1265, 1266 [3d Dept 2020], lv denied 36 N.Y.3d 904 [2021]). "A ministerial act is best described as one that is mandated by some rule, law or other standard and typically involves a compulsory result" (Alliance to End Chickens as Kaporos v New York City Police Dept., 152 A.D.3d at 117 [citation omitted]). "Mandamus is not available to compel an officer or body to reach a particular outcome with respect to a decision that turns on the exercise of discretion or judgment. In other words, mandamus will lie to compel a body to perform a mandated duty, not how that duty shall be performed" (id.; see Klostermann v Cuomo, 61 N.Y.2d 525, 539-540 [1984]). "A discretionary act 'involves the exercise of reasoned judgment which could typically produce different acceptable results[,] whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result'" (Matter of Willows Condominium Assn. v Town of Greenburgh, 153 A.D.3d 535, 536 [2d Dept 2017] [brackets and citation omitted], quoting Tango v Tulevech, 61 N.Y.2d 34, 41 [1983]).

Fundamentally, "[i]mposing a criminal sentence is never ministerial" (People v Reyes, 72 Misc.3d 1133, 1140 [Sup Ct, NY County 2021]; see Matter of Kurz v Justices of Supreme Ct. of N.Y., Kings County, 228 A.D.2d 74, 77 [2d Dept 1997]; see also People v White, 141 A.D.3d 463, 464 [1st Dept 2016], lv denied 28 N.Y.3d 975 [2016]). Indeed, "a trial court always 'retains discretion in fixing an appropriate sentence up until the time of the sentencing'" (People v Muhammad, 132 A.D.3d 1068, 1069 [3d Dept 2015], quoting People v Schultz, 73 N.Y.2d 757, 758 [1988]). "[T]he necessary exercise of discretion cannot be fixed immutably at the time of the plea, for the decision requires information that may be unavailable then" (People v Farrar, 52 N.Y.2d 302, 306 [1981]). At the time of sentencing, the court must consider "the crime charged, the particular circumstances of the individual before the court and the purpose of a penal sanction, i.e., societal protection, rehabilitation and deterrence," all while remaining "detached from outside pressures often brought to bear on the prosecution and defense" (id. at 305-306). Due to the inherently discretionary nature of sentencing, a criminal defendant is not entitled to a writ of mandamus to compel the trial court to sentence him or her in accordance with a plea agreement, so long as" 'the reasons for departing from the sentencing agreement are placed upon the record to ensure effective appellate review of the sentencing court's exercise of discretion,'" as was done in this case (Matter of Kurz v Justices of Supreme Ct. of N.Y., Kings County, 228 A.D.2d at 77 [brackets omitted], quoting People v Schultz, 73 N.Y.2d at 758).

It is petitioner's position that respondent was mandated to impose the bargained-for sentence, retaining no discretion whatsoever, because petitioner was entitled to specific performance of the plea agreement due both to his detrimental reliance upon it as well as respondent having had no new information before him to justify his decision not to impose the sentence of probation. However, petitioner fails to recognize that respondent, in deciding whether to honor the negotiated sentence, necessarily exercised his discretion and judgment. That is, a determination such as the one rendered by respondent required consideration, under the unique facts and circumstances of the case, of whether petitioner had detrimentally relied upon the plea agreement - including analysis of the nature and extent of any services performed by petitioner - whether there was any new information that rendered the promised sentence improvident, whether a reassessment of the case and the contemplated disposition justified deviating from the sentence, or whether other compelling reasons existed to warrant a different outcome. Stated another way, because respondent was under no obligation to merely "rubber stamp" the probation sentence, the mandamus relief being sought by petitioner is unavailable.

That said, petitioner's argument concerning respondent's authority may readily be construed as seeking a writ of prohibition, notwithstanding the nomenclature of his application. ^[2] We therefore next consider whether "the issue presented is the type for which the remedy may be granted" (Matter of Holtzman v Goldman, 71 N.Y.2d 564, 568 [1988]). Although it is well established "that prohibition will not lie as a means of seeking collateral review of mere trial errors of substantive law or procedure, however egregious the error may be" (Matter of Rush v Mordue, 68 N.Y.2d 348, 353 [1986]; see Matter of Holtzman v Goldman, 71 N.Y.2d at 569), "there is no sharp line between a court acting in error under substantive or procedural law and a court acting in excess of its powers, if only because every act... in excess of [a court's] powers in a proceeding over which it has jurisdiction of necessity involves an 'error of law'" (La Rocca v Lane, 37...