In the Matter of Michael C. Green v. Demarco

Citation925 N.Y.S.2d 762,2011 N.Y. Slip Op. 05332,87 A.D.3d 15
PartiesIn the Matter of Michael C. GREEN, In his Official Capacity as District Attorney of Monroe County, Petitioner–Plaintiff,v.Honorable John DEMARCO, A Judge of the County Court, County of Monroe, State of New York, Ellis Mechallen, Criminal Defendant,andFernando Lopez, Criminal Defendant, Respondents–Defendants.
Decision Date17 June 2011
CourtNew York Supreme Court Appellate Division

87 A.D.3d 15
925 N.Y.S.2d 762
2011 N.Y. Slip Op. 05332

In the Matter of Michael C. GREEN, In his Official Capacity as District Attorney of Monroe County, Petitioner–Plaintiff,
v.
Honorable John DEMARCO, A Judge of the County Court, County of Monroe, State of New York, Ellis Mechallen, Criminal Defendant,andFernando Lopez, Criminal Defendant, Respondents–Defendants.

Supreme Court, Appellate Division, Fourth Department, New York.

June 17, 2011.


[925 N.Y.S.2d 763]

Michael C. Green, District Attorney, Rochester (Leslie E. Swift of Counsel), Petitioner–Plaintiff Pro Se.Phillips Lytle LLP, Buffalo (Timothy W. Hoover of Counsel), for Respondent–Defendant Honorable John Demarco, A Judge of The County Court, County of Monroe, State of New York.Timothy P. Donaher, Public Defender, Rochester (James Eckert of Counsel), for Respondent–Defendant Ellis Mechallen, Criminal Defendant.Easton Thompson Kasperek Shiffrin LLP, Rochester (Donald M. Thompson of Counsel), for Respondent–Defendant Fernando Lopez, Criminal Defendant.PRESENT: SCUDDER, P.J., CARNI, SCONIERS, AND GREEN, JJ.SCUDDER, P.J.

[87 A.D.3d 16] Petitioner-plaintiff (hereafter, petitioner) commenced this original hybrid CPLR article 78 proceeding/declaratory judgment action seeking three forms of relief: a judgment pursuant to CPLR 7803(3), mandamus to review, concluding that the determination[87 A.D.3d 17] of respondent-defendant Honorable John DeMarco (hereafter, respondent) to conduct, contemporaneously, the suppression hearings and bench trials in the criminal matters involving respondents-defendants Ellis Mechallen and Fernando Lopez was, inter alia, in violation of lawful procedure; a judgment pursuant to CPLR 7803(2), a writ of prohibition, prohibiting respondent from conducting such joint proceedings; and a judgment pursuant to CPLR 3001 declaring that conducting the joint hearings/trials is in violation of CPL 710.40(3), which requires that a court determine pretrial suppression motions prior to the commencement of a trial. The matters concerning Mechallen and Lopez were stayed pursuant to CPLR 7805 pending the outcome of this proceeding. We note at the outset, however, that Mechallen subsequently withdrew her suppression motion and the bench trial was conducted. Contrary to the contentions of petitioner and Mechallen, we conclude that the allegations in the petition with respect to Mechallen are moot, and those parts of the petition/complaint seeking relief with respect to her therefore should be dismissed. We further conclude that petitioner is not entitled to relief in the nature of mandamus to review pursuant to CPLR 7803(3), inasmuch as the actions of respondent

[925 N.Y.S.2d 764]

do not constitute an administrative action made in the exercise of discretion ( see generally Kraham v. Mathews, 305 A.D.2d 746, 761 N.Y.S.2d 102, lv. denied 100 N.Y.2d 512, 767 N.Y.S.2d 393, 799 N.E.2d 616), and thus that part of the petition/complaint seeking that relief should be denied.

The issues properly before us are whether a writ of prohibition should be issued prohibiting respondent from conducting a joint suppression hearing and bench trial in the matter involving respondent-defendant Fernando Lopez and whether petitioner is, in addition, entitled to declaratory relief to that effect.

Writ of Prohibition

CPL 710.40(3) provides that, “[w]hen a motion is made before trial, the trial may not be commenced until determination of the motion.” Petitioner alleges that, if respondent is permitted to proceed with a joint suppression hearing/trial in the Lopez matter in contravention of CPL 710.40(3), the People will be denied the right to appeal from an order granting the suppression motion inasmuch as their right to appeal is limited to appeal from suppression orders that are entered prior to trial ( see CPL 450.20[8] ). The issue before us therefore is whether respondent's determination to conduct, contemporaneously, the suppression hearing and bench trial in the Lopez matter [87 A.D.3d 18] contravenes CPL 710.40(3) and thus is in excess of respondent's authorized powers in a matter over which he has jurisdiction ( see CPLR 7803[2] ).

It is axiomatic that relief in the nature of a writ of prohibition “is available ... to prevent a court from exceeding its authorized powers in a proceeding over which it has jurisdiction [only where] ... petitioner has established a clear legal right to that relief” ( Matter of Pirro v. Angiolillo, 89 N.Y.2d 351, 355–356, 653 N.Y.S.2d 237, 675 N.E.2d 1189 [internal quotation marks omitted]; see Matter of Rush v. Mordue, 68 N.Y.2d 348, 352–353, 509 N.Y.S.2d 493, 502 N.E.2d 170). Whether to grant the extraordinary remedy of a writ prohibiting respondent from conducting...

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