Jeffryes v. Vance
| Decision Date | 20 September 2017 |
| Citation | 61 N.Y.S.3d 851,58 Misc.3d 185 |
| Parties | In the Matter of the Application of Arminta JEFFRYES and Cristina Winsor, Petitioners, For a Judgment and Order Pursuant to Article 78 and Section 3001 of the C.P.L.R., v. Cyrus R. VANCE, Jr., Esq., the District Attorney of New York County; City Of New York; New York Police Department; and Hon. Guy Mitchell, a Judge of the New York City Criminal Court, Respondents. Arminta Jeffryes and Cristina Winsor, Plaintiffs, v. Cyrus R. Vance, Jr., Esq., the District Attorney of New York County; City of New York; and New York Police Department, Defendants. |
| Court | New York Supreme Court |
Martin R. Stolar Esq., Gideon Orion Oliver Esq., Elena L. Cohen Esq., New York, Jonathan Wallace Esq., Amagansett, for Petitioners–Plaintiffs.
Patricia J. Bailey, Assistant District Attorney, New York, for Respondent–Defendant Vance.
Adam Moss, Assistant Corporation Counsel, New York City Law Department, New York, for Respondents–Defendants City of New York and New York City Police Department.
Respondent Vance, New York County District Attorney, moves to dismiss this hybrid action and proceeding against him based on another action pending seeking the same relief and based on petitioners' failure to allege a claim entitling petitioners to relief in this proceeding. C.P.L.R. § 3211(a) (4) and (7). Respondents City of New York and New York City Police Department separately move to dismiss petitioners' claims against these respondents on the same grounds and also based on the court's lack of subject matter jurisdiction over petitioners' claims. C.P.L.R. § 3211(a)(2). In this proceeding as well as in pending criminal prosecutions against petitioners, they seek to prohibit the District Attorney from delegating his prosecutorial authority to attorneys of the Police Department.
In the pending criminal prosecutions, petitioners moved to disqualify the Police Department attorneys from prosecuting the criminal actions. V. Pet. & Compl. ¶ 17. Petitioners based their motion on the District Attorney's unlawful delegation and on the Police Department attorneys' conflict of interest between representing the interests of the Police Department and its officers involved in petitioners' arrests, who may be subject to civil liability for the arrests and prosecutions, and the interests of the people of the county. The New York City Criminal Court in New York County (Mitchell, J.) determined that the delegation was lawful and did not entail an impermissible conflict of interest and denied petitioners' motions. Id. ¶ 18, Ex. B. Petitioners have not sought to take an intermediate appeal, but concede that they may appeal the Criminal Court's denial of their motions after any conviction in the criminal actions. Petitioners now seek a determination by this court of the very issues that the Criminal Court already determined and that the Appellate Term may review upon either of petitioners' conviction of any of the offenses with which petitioners are charged. Cayuga Indian Nation of N.Y. v. Gould, 14 N.Y.3d 614, 633–34, 904 N.Y.S.2d 312, 930 N.E.2d 233 (2010) ; Morgenthau v. Erlbaum, 59 N.Y.2d 143, 149, 464 N.Y.S.2d 392, 451 N.E.2d 150 (1983). See Hurrell–Harring v. State of NY,
15 N.Y.3d 8, 16, 904 N.Y.S.2d 296, 930 N.E.2d 217 (2010).
According to a Memorandum of Understanding (MOU) between the District Attorney and the Police Department, V. Pet. & Compl. Ex. A, the District Attorney delegated to the Police Department the authority to prosecute all violations when the defendant is required to appear in the Criminal Court's Summons Part or appeals a conviction for a violation from the Summons Part to the Appellate Term. The District Attorney may delegate "the prosecution of petty crimes and offenses" to other public officers, as long as he remains aware of all delegated prosecutions. People v. Soddano, 86 N.Y.2d 727, 728, 631 N.Y.S.2d 120, 655 N.E.2d 161 (1995). The MOU requires the Police Department to provide to the District Attorney a monthly report of all delegated prosecutions. V. Pet. & Compl. Ex. A ¶ 2.
On March 7, 2016, respondent Police Department issued a summons to petitioner Jeffryes charging her with crossing a city roadway against a pedestrian traffic signal, a violation of 34 RCNY § 4–03(c)(3). On the same day respondent Police Department issued two summonses to petitioner Winsor. One charged her with disorderly conduct by congregating in a public place and refusing to comply with a police officer's order to disperse, a violation of New York Penal Law § 240.20(6). A second charged her with walking on a city roadway adjacent to a sidewalk available for safe use, a violation of New York Vehicle and Traffic Law § 1156(a).
Petitioners allege that police officers are the complainants and sole witnesses to the alleged offenses charged in the summonses and that no prosecutor interviewed these complainants and arrived at an independent judgment whether to prosecute the charges. V. Pet. & Compl. ¶¶ 19, 25–27. At demonstrations and protests such as where the alleged offenses by petitioners occurred, Police Department attorneys themselves also may be witnesses, are at the scene providing legal advice to the police officers regarding arrests, and then undertake the District Attorney's function preparing the charges, a function for which the Police Department may be sued by persons claiming they were unlawfully arrested or prosecuted. Id. ¶¶ 42–43. These attorneys advise the Police Department on policies, procedures, and practices to prevent civil liability; defend the Police Department and officers against civil liability for their conduct in connection with their arrests; and, even if not the attorneys who appear for the prosecutions initiated, work closely with them. Id. ¶¶ 44–46.
Petitioners further allege that the Police Department prosecutors in the criminal actions against petitioners, in exchange for an adjournment in contemplation of dismissal (ACD), C.P.L. § 170.55, demanded their allocutions on the record that the circumstances gave the police officers probable cause to arrest petitioners for the offenses charged. V. Pet. & Compl. ¶ 62. The Police Department prosecutors' demands for petitioners' admissions that will insulate the Police Department and officers from civil liability for their conduct in connection with petitioners' arrests and prosecutions allegedly are due to the prosecutors' allegiance to their employer, the Police Department, and their co-employees, the complaining and arresting officers. Id. ¶¶ 44–45, 47, 49–51. Demanding admissions of probable cause for arrests contravenes the purpose of ACDs, which is to treat the arrest as "a nullity" and restore defendants to their status before the arrest, as if it never occurred, not as if it occurred with probable cause. C.P.L. § 170.55. Had respondent District Attorney prosecuted these charges, petitioners claim, he would not have exacted any allocution or admission in exchange for offering an ACD, because he has no interest in protecting against the Police Department's and officers' civil liability and has an interest only in achieving justice for the people of the county. V. Pet. & Compl. ¶¶ 38–39. See Young v. United States ex rel. Vuitton et Fils SA, 481 U.S. 787, 810, 107 S.Ct. 2124, 95 L.Ed.2d 740 (1987) ; People v. Adams, 20 N.Y.3d 608, 613, 964 N.Y.S.2d 495, 987 N.E.2d 272 (2013) ; Cowles v. Brownell, 73 N.Y.2d 382, 387, 540 N.Y.S.2d 973, 538 N.E.2d 325 (1989).
Along with exacting admissions to protect the Police Department and officers from civil liability in exchange for an ACD in prosecutions arising from demonstrations and protests, petitioners allege that Police Department prosecutors selectively, almost exclusively, prosecute charges arising from demonstrations and protests among all the charges covered by the MOU. The Police Department prosecutors prosecute few, if any, charges arising from other circumstances, even though the MOU authorizes those prosecutions. For persons who frequently or regularly participate in demonstrations or protests, the prospect of such selective prosecutions may form the basis for a declaratory judgment, C.P.L.R. § 3001 ; National Union Fire Ins. Co. of Pittsburgh, PA v. Compaction Sys. Corp. of N.J., 136 A.D.3d 594, 594–95, 27 N.Y.S.3d 1 (1st Dep't 2016) ; Big Four LLC v. Bond St. Lofts Condominium, 94 A.D.3d 401, 402–403, 941 N.Y.S.2d 567 (1st Dep't 2012) ; Long Is. Light. Co. v. Allianz Underwriters Ins. Co., 35 A.D.3d 253, 253, 826 N.Y.S.2d 55 (1st Dep't 2006) ; 40–56 Tenth Ave. LLC v. 450 W. 14th St. Corp., 22 A.D.3d 416, 417, 803 N.Y.S.2d 56 (1st Dep't 2005), or injunctive relief. Hurrell–Harring v. State of NY, 15 N.Y.3d at 21, 26–27, 904 N.Y.S.2d 296, 930 N.E.2d 217 ; McCain v. Koch, 70 N.Y.2d 109, 118, 517 N.Y.S.2d 918, 511 N.E.2d 62 (1987) ; Likokas v. 200 E. 36th St. Corp., 48 A.D.3d 245, 245, 850 N.Y.S.2d 451 (1st Dep't 2008). See Steingut v. Gold, 42 N.Y.2d 311, 315, 397 N.Y.S.2d 765, 366 N.E.2d 854 (1977) ; Dondi v. Jones, 40 N.Y.2d 8, 14, 386 N.Y.S.2d 4, 351 N.E.2d 650 (1976).
As long as petitioners may raise and receive an adjudication of the unlawful delegation of prosecutorial authority and the delegee prosecutors' impermissible conflict of interest in petitioners' criminal prosecutions, this court may not prohibit the prosecutions or the adjudication of those issues there, nor determine them for purposes of the criminal actions. Cayuga Indian Nation of N.Y. v. Gould, 14 N.Y.3d at 633–34, 904 N.Y.S.2d 312, 930 N.E.2d 233 ; Morgenthau v. Erlbaum, 59 N.Y.2d at 147, 149, 464 N.Y.S.2d 392, 451 N.E.2d 150 ; Steingut v. Gold, 42 N.Y.2d at 315, 397 N.Y.S.2d 765, 366 N.E.2d 854. See Hurrell–Harring v. State of NY, 15 N.Y.3d at 16, 904 N.Y.S.2d 296, 930 N.E.2d 217. Although the determinations in the criminal actions were adverse to petitioners, "in the event of a conviction," they may appeal those adverse...
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