Legal Aid Soc. of Sullivan County, Inc. v. Scheinman

• Citation: 439 N.Y.S.2d 882,422 N.E.2d 542,53 N.Y.2d 12
• Parties: , 422 N.E.2d 542 In the Matter of the LEGAL AID SOCIETY OF SULLIVAN COUNTY, INC., Appellant, v. Louis B. SCHEINMAN, as County Court Judge, County of Sullivan, State of New York, et al., Respondents.
• Decision Date: 12 May 1981
• Court: New York Court of Appeals

Page 882

439 N.Y.S.2d 882

53 N.Y.2d 12, 422 N.E.2d 542

In the Matter of the LEGAL AID SOCIETY OF SULLIVAN COUNTY INC., Appellant, v. Louis B. SCHEINMAN, as County Court Judge, County of Sullivan, State of New York, et al., Respondents.

Court of Appeals of New York.

May 12, 1981.

Carl J. Silverstein and Gary Waldman, Monticello, for appellant

Joseph Jaffe, Dist. Atty. (Philip E. Conaty, Asst. Dist. Atty., of counsel), for respondents.

Eugene W. Salisbury, Buffalo, Duncan S. MacAffer, Albany, and Frank S. Kedzielawa, Buffalo, for New York State Association of Magistrates, amicus curiae.

Rene H. Reixach, Rochester, for Greater Upstate Law Project, amicus curiae.

Edward C. Cosgrove, Dist. Atty., and Ernest G. Anstey, Asst. Dist. Atty., for District Attorney's Association of the State of New York, amicus curiae.

OPINION OF THE COURT

JONES, Judge.

Relief under CPLR article 78 in the nature of mandamus does not lie to compel the removal by a superior court of charges pending in a local criminal court in order to assure a defendant trial before a lawyer-trained Judge.

By informations lodged against him in the Town of Mamakating Justice Court in Sullivan County, one John Housman stands charged with disorderly conduct and resisting arrest. Neither charge has yet been prosecuted. Shortly after being arraigned on those charges, however, Housman's assigned counsel, petitioner Legal Aid Society of Sullivan County, on his behalf moved before LOUIS B. SCHEINMAN, a Judge of the County of Sullivan County, to have the charges against him prosecuted by indictment and to have the matter presented to the Grand Jury. That motion was based on CPL 170.25 (subd. 1) which provides in part that "a superior court having jurisdiction to prosecute such misdemeanor charge by indictment may, upon * * * showing good cause to believe that the interests of justice so require, order that such charge be prosecuted by indictment". Housman contended that, because none of the Justices of the local criminal court in the Town of Mamakating were admitted to practice law, he had a constitutional right to have his case removed to a court which would afford him a trial presided over by a Judge who was a lawyer. When that application was denied, the Legal Aid Society in its own name instituted the present article 78 proceeding in the Appellate Division for a writ in the nature of mandamus to compel Judge SCHEINMAN to grant the relief Housman had sought under CPL 170.25 (subd. 1). The Appellate Division dismissed the petition. 73 A.D.2d 411, 426 N.Y.S.2d 840. We now affirm.

At the threshold we note the questionable standing of the Legal Aid Society to institute the present proceeding. The only party directly affected is the client, whose interests may be said to be placed in jeopardy under the statutory provisions. The Legal Aid Society in effect seeks an advisory declaratory opinion on the basis of which it may formulate the advice to be given to its client. No authority is cited to warrant judicial entertainment of any such application. Inasmuch, however, as this issue is not raised by respondent we are hesitant to predicate a disposition of the present appeal on this ground. It is assumed, therefore, without deciding, that the present proceeding is not to be dismissed for lack of standing on the part of the Legal Aid Society.

We turn then to the question of the availability of article 78 relief in the present circumstances. Mandamus lies to compel the performance of a purely ministerial act where there is a clear legal right to the relief sought. ¹ That is not the case in this instance. Additionally, to hold, as would the dissenter, that mandamus would lie in the present case would be to project the court into the very practice all courts seek assiduously to avoid--the making of pronouncements with respect to constitutional issues whose resolution is not necessary to the disposition of the case before the court. The circumstance that we honor this jurisprudential principle warrants no inference, of course, as to how we would resolve the constitutional issue if it were to be addressed.

More significant and controlling is the fact that mandamus like prohibition is an extraordinary remedy, and we have consistently held that such remedies do not lie for interlocutory relief which operates to disrupt the normal progress of a pending criminal action. It is well settled that mandamus is not available to remedy or prevent trial errors. Sound principles of judicial administration require that their correction be left to the normal avenues of appellate review.

The denial of article 78 relief here is mandated by our decision in Matter of State of New York v. King, 36 N.Y.2d 59, 62-65, 364 N.Y.S.2d 879, 324 N.E.2d 351 in which then Chief Judge BREITEL wrote for a unanimous court:

"The courts may not entertain a collateral proceeding to review an error of law in a pending criminal action, however egregious and however unreviewable, by way of immediate appeal or by appeal after the final judgment of conviction or acquittal, whichever may eventuate.

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"Were allowance of this kind of proceeding to become a precedent, one would have to anticipate innumerable proceedings in all sorts of criminal matters to review allegedly prejudicial errors of law for which there would be no eventual appellate review or only appellate review after final judgments, and then only of conviction. No trial can be conducted while appellate courts by their own protracted proceedings review the alleged errors which may arise preliminary to the trial, during the trial, and before verdict and judgment. Such a system is neither civilized nor even rational. And most certainly it would make speedy trial a legal impossibility.

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"Were the court to conclude otherwise than to reject this unsound and novel extension of the extraordinary ancient remedies of prohibition and mandamus, it might be a credit to man's ingenuity but a disabling discredit to the jurisprudence."

In King, of course, we confronted an issue as to which it was recognized that the People could never seek judicial review by way of appeal; nonetheless relief under article 78 was denied. By contrast, in the present case, Housman can obtain full judicial review of his claim (that he was deprived of his constitutional rights when the County Judge rejected his application for removal) on direct appeal from any judgment of conviction against him. Where that alternative is present, to encumber criminal proceedings with collateral, interlocutory actions, disruptive of the normal progress of pending charges, is impermissible. ²

Accordingly, for the reasons stated, the judgment of the Appellate Division dismissing the petition should be affirmed, without costs.

FUCHSBERG, Judge (dissenting).

Is it unconstitutional for a defendant charged with a crime, conviction for which could bring imprisonment, to be compelled to have his case tried before a Judge who is not a lawyer? That is the real issue in this case.

As I see it, the majority's decision, purportedly based on procedural grounds, despite its protestations to the contrary necessarily assumes its own resolution of the substantive constitutional question. The assumption is that a decision, whether to remove a case, pursuant to CPL 170.25, from a local criminal court presided over by a lay Justice to a "superior court" at which only lawyer-Judges may preside, rests within the discretion of a "superior court" Judge.

Because the holding to which this premise leads the court today implicitly deprives the defendant of due process of law, such interpretation of the statute would render it unconstitutional. However, since it is possible to interpret CPL 170.25 to require removal to a "superior court" under these circumstances, that is how I believe the statute should be read.

My holding, of course, would make any denial of a CPL 170.25 motion subject to mandamus. For, while collateral proceedings in a criminal matter are disfavored (e. g., Matter of State of New York v. King, 36 N.Y.2d 59, 364 N.Y.S.2d 879, 324 N.E.2d 351), it is elementary that, where a duty is merely ministerial, mandamus lies (see Artis v. Keegan, 77 Misc.2d 638, 354 N.Y.S.2d 504; Matter of Bernoff v. Amoroso, 188 Misc. 845, 65 N.Y.S.2d 810, aff'd 271 App.Div. 925, 67 N.Y.S.2d 701; McLaughlin, Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 7B, CPLR 7801, C. 7801:9, p. 38).

The constitutional question arises in the context of informations lodged against the defendant in the Town Court of Mamakating, Sullivan County, for disorderly conduct, a violation (Penal Law, § 240.20), and resisting arrest, a misdemeanor (Penal Law, § 205.30). Conviction of either could bring imprisonment (see New York Sentence Charts, Chart III). Promptly after his arraignment before one of that court's two Justices, neither of whom is a lawyer, the defendant brought on a CPL 170.25 (subd. 1) motion before the Sullivan County Court, which, as a "superior court having jurisdiction to prosecute misdemeanor charge by indictment * * * may, upon motion of the defendant * * * showing good cause to believe that the interests of justice so require, order that such charge be prosecuted by indictment and that the district attorney present it to the grand jury for that purpose". A case so prosecuted, would, of course, effect a transfer before a lawyer-Judge, since indictments in this State are not prosecutable before Town or Village Courts.

Except to express his dissatisfaction with the prospect of a trial presided over by a jurist who is not admitted to the practice of law, defendant, in support of his motion, as in all the ensuing proceedings in this matter, made no attempt to come within the "good cause" requirement of the statute. Raising no specific issue as to, for instance, the complexity or simplicity of his case, his insistent position was, and continues to be, that the due process clause of...