Hynes v. George

• Court: New York Court of Appeals Court of Appeals
• Writing for the Court: HANCOCK; WACHTLER
• Citation: Hynes v. George, 561 N.Y.S.2d 538, 76 N.Y.2d 500, 562 N.E.2d 863 (N.Y. 1990)
• Decision Date: 16 October 1990
• Parties: , 562 N.E.2d 863 In the Matter of Charles J. HYNES, as District Attorney of Kings County, Respondent, v. Norman GEORGE, as Justice of the Supreme Court, et al., Appellants.

Page 538

561 N.Y.S.2d 538

76 N.Y.2d 500, 562 N.E.2d 863

In the Matter of Charles J. HYNES, as District Attorney of Kings County, Respondent, v. Norman GEORGE, as Justice of the Supreme Court, et al., Appellants.

Court of Appeals of New York.

Oct. 16, 1990.

Steven B. Wasserman and Robert M. Baum, for Daniel Ruso, appellant.

Milton Stern and Robert Abrams, Atty. Gen. (O. Peter Sherwood, Lawrence S. Kahn and Harvey M. Berman, of counsel), for Norman George, appellant.

Charles J. Hynes, Dist. Atty. (Ann Bordley, Jay M. Cohen and Peter A. Weinstein, of counsel), for respondent pro se.

OPINION OF THE COURT

HANCOCK, Judge.

The People three times announced their readiness for trial in the case of People v. Daniel Ruso. On the date the trial was to commence, however, the prosecutor sought an adjournment because the complaining witness failed to appear at a meeting that morning and could not be reached by telephone. The trial court denied the request and ordered the trial to proceed. The issue is whether the trial court had the power to deny the People's request for an adjournment and to proceed with jury selection. We conclude that the trial court had such power and that the Appellate Division erred in granting the People's article 78 proceeding to prohibit the trial court "from empanelling a jury or otherwise purporting to move [the case] to trial". We, therefore, reverse.

I

Respondent Daniel Ruso was indicted in September 1989 for robbery, third degree, and harassment, arising from an alleged forcible theft of $5 from his grandmother, Mrs. Maria Ruso. On April 5, 1990, the case came on for trial before Kings County Supreme Court Justice Quinones. The People declared that they were ready for trial and, that day, a Huntley hearing was held. After defendant's counsel was unable to proceed on the next set trial date, April 15, the trial was adjourned until April 23, 1990. Again on April 23, the People announced their trial readiness, but the case was adjourned for another day because Justice Quinones was involved in trial and no other parts were available. On April 24, the People again announced their readiness. Because Justice Quinones was still engaged, he transferred the case to respondent's part for trial. ¹ Respondent granted defendant's request to adjourn the case until the following day and, to accommodate a morning meeting the Assistant District Attorney had scheduled with the complaining witness, ordered that the trial proceedings not begin until 11:00 A.M.

At 11:35 A.M. on April 25, the prosecutor informed the court that the People were not ready to proceed because the complainant had missed her scheduled meeting and he had been unable to locate her by telephone. The prosecutor advised the court that the complainant, a Brooklyn resident, had kept each of her five or six prior appointments. However, although she had expressed reluctance to testify against her grandson, the People never sought to insure her appearance in court by means of a subpoena.

Respondent denied the People's request, stating: "the People have knowledge and notice that the complaining witness is the defendant's grandmother * * * [who] is sympathetic towards her grandson * * * [and thus] was a 'reluctant' witness, and [the People] having been advised of all of these things and not having taken appropriate actions to assure the complaining witness' appearance in court for trial and not having even served a subpoena upon the complaining witness, and not having provided the Court with any information as to when and if the complaining witness will ever appear or where the complaining witness is or that they have even been in communication directly with the complaining witness rather than with the complaining witness' daughter, ² in view of all of these facts and circumstances the People's application for an adjournment is denied and we will go forward with the trial." The court announced that the case would be recessed until 2:00 P.M., when it would rule on the Sandoval motion and commence jury selection. The court expressly rejected the People's contention that it lacked the power to proceed without the People's consent.

After recess, the prosecutor refused to participate in jury selection, stating that he was not ready for trial. The voir dire went ahead without the People's participation ³ and after eight jurors were selected, the case was recessed until the following morning.

The next day the People initiated this prohibition proceeding in the Appellate Division (see, CPLR 7803 [2]; 7804 [b] by petition and an order to show cause which temporarily stayed further proceedings in the criminal trial. Thereafter, the Appellate Division granted the petition, on the law, and ordered that the eight jurors be discharged and that further jury selection be stayed until such time as the People announce their readiness for trial. That court concluded that "[w]hile the power of the trial court to deny the People any further adjournment is not disputed, the court erred in calling up a jury panel and compelling the People to proceed to trial when an essential witness was unavailable." (161 A.D.2d 559, 555 N.Y.S.2d 136, 137).

We do not accept the Appellate Division's conclusion that the court, while undeniably having the power to deny an adjournment, lacked the power to order that the trial proceed. The People's prohibition petition, therefore, should not have been granted.

II

Article 78 relief in the nature of prohibition (CPLR 7803 [2] is an extraordinary remedy (see, Matter of Holtzman v. Goldman, 71 N.Y.2d 564, 569-570, 528 N.Y.S.2d 21, 523 N.E.2d 297; Matter of Rush v. Mordue, 68 N.Y.2d 348, 352-353, 509 N.Y.S.2d 493, 502 N.E.2d 170; Matter of Dondi v. Jones, 40 N.Y.2d 8, 13, 386 N.Y.S.2d 4, 351 N.E.2d 650; Matter of State of New York v. King, 36 N.Y.2d 59, 65, 364 N.Y.S.2d 879, 324 N.E.2d 351). In cases such as this, where judicial authority is challenged, it is only available if a clear legal right exists and then only when the court acts or threatens to act either without jurisdiction or in excess of its authorized powers (see, Matter of Holtzman, supra, 71 N.Y.2d at 569, 528 N.Y.S.2d 21, 523 N.E.2d 297; Matter of Rush v. Mordue, supra, 68 N.Y.2d at 352, 509 N.Y.S.2d 493, 502 N.E.2d 170; Matter of Morgenthau v. Erlbaum, 59 N.Y.2d 143, 147, 464 N.Y.S.2d 392, 451 N.E.2d 150, cert. denied 464 U.S. 993, 104 S.Ct. 486, 78 L.Ed.2d 682; 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, supra, 40 N.Y.2d at 13, 386 N.Y.S.2d 4, 351 N.E.2d 650).

The power of the trial court to deny the People's request for an adjournment is not, and cannot be, disputed (see, Matter of Holtzman v. Goldman, supra, 71 N.Y.2d at 566, 570, 575, 528 N.Y.S.2d 21, 523 N.E.2d 297; People v. Douglass, 60 N.Y.2d 194, 200, 469 N.Y.S.2d 56, 456 N.E.2d 1179; People v. Foy, 32 N.Y.2d 473, 476-478, 346 N.Y.S.2d 245, 299 N.E.2d 664; People v. Jackson, 111 N.Y. 362, 19 N.E. 54 [1888]. The People nonetheless contend here that respondent was without the power to proceed with the trial and could only place the case on the reserve calendar, exercise its contempt power (if the People failed to exercise reasonable diligence in locating the complainant) or dismiss the case in the interest of justice. The People rely on Matter of Holtzman v. Goldman, 71 N.Y.2d 564, 528 N.Y.S.2d 21, 523 N.Y.S.2d 297, supra; see also, People v. Douglass, 60 N.Y.2d 194, 200, 469 N.Y.S.2d 56, 456 N.E.2d 1179, supra. The Appellate Division agreed with this contention. We do not.

Matter of Holtzman v. Goldman (supra) is clearly distinguishable. In Holtzman, the court held that the trial court does not have the power to terminate a criminal proceeding by default by entering a trial order of dismissal on the merits where no evidence had been presented and the merits of the case had not yet been heard ( see also, People v. Douglass, 60 N.Y.2d 194, 200-206, 469 N.Y.S.2d 56, 456 N.E.2d 1179, supra [discussing the trial court's lack of authority to dismiss a criminal case for "failure to prosecute" or "calendar control"]. We noted that the trial court was not "helpless" and suggested that rather than terminate the criminal case, it could have "placed the case on a reserve calendar to be restored only when ready for trial or dismissed when the speedy trial period had elapsed", exercised its contempt powers for unreasonable delay in locating complainant, or entertained a motion for dismissal in the interest of justice (71 N.Y.2d, at 574, 528 N.Y.S.2d 21, 523 N.E.2d 297). As the court made "perfectly plain": our decision "does not divest Supreme Court of authority or discretion respecting adjournments or otherwise. * * * Only the extreme measure of dismissal of a criminal prosecution [was] in issue" (id., at 575, 528 N.Y.S.2d 21, 523 N.E.2d 297).

Here, unlike Holtzman or Douglass, the trial court entered no order of dismissal; it simply required the parties to proceed with jury selection (see, CPL 260.30). Given that the trial court concededly had the power to deny the People's request to "adjourn" the trial--that is, to deny " 'putting [it] off until another time or place' " (People v. Martin, 5 N.Y. 22, 26; see, Matter of Holtzman v. Goldman, 71 N.Y.2d, at 580, 528 N.Y.S.2d 21, 523 N.E.2d 297 [Bellacosa, J., dissenting]; cf., People v. De Rosa, 42 N.Y.2d 872, 397 N.Y.S.2d 780, 366 N.E.2d 868 [refusal of trial court to grant prosecutor a few hours adjournment under the facts of that case constituted an abuse of discretion]--a conclusion that the court nevertheless lacked the power to proceed with the trial in its normal course would be an anomaly.

The People further argue that the order to proceed to trial was...