Molea v. Marasco

• Decision Date: 20 December 1984
• Parties: , 475 N.E.2d 109 In the Matter of Anthony A. MOLEA, as Acting District Attorney of Westchester County, Respondent, v. Carmine C. MARASCO, as Judge of the County Court, Westchester County, et al., Respondents, and Kevin Magee, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 738

485 N.Y.S.2d 738

64 N.Y.2d 718, 475 N.E.2d 109

In the Matter of Anthony A. MOLEA, as Acting District Attorney of Westchester County, Respondent, v. Carmine C. MARASCO, as Judge of the County Court Westchester County, et al., Respondents and Kevin Magee, Appellant.

Court of Appeals of New York.

Dec. 20, 1984.

David B. Weisfuse and Stephen J. Pittari, White Plains, for appellant.

Carl A. Vergari, Dist. Atty. (Diane E. Selker, Gerald D. Reilly, White Plains, and Anthony J. Servino, Scarsdale, of counsel), for petitioner-respondent.

OPINION OF THE COURT MEMORANDUM.

The judgment of the Appellate Division should be reversed, without costs, and the petition dismissed.

Defendant was charged in a felony complaint with attempted rape in the first degree and burglary in the first degree. After he rejected a plea offer, his counsel, the District Attorney and the court agreed that a preliminary hearing would be held. At the beginning of the hearing, defense counsel made an application to waive his client's presence so as to prevent a suggestive identification. The Town Court Justice granted the application, noting that "District Attorney also has statutory authority to present evidence to a grand jury independent of defendant's right to a felony hearing and a failure to appear." The felony hearing was then rescheduled, but on the rescheduled date the People moved, over defendant's objection, for an adjournment so that the matter could be presented directly to the Grand Jury. The adjournment was granted, the matter was presented to the Grand Jury and defendant was indicted for attempted rape in the first degree and burglary in the first degree. After arraignment in County Court defendant moved to dismiss the indictment for, among other grounds, the People's failure to conduct a preliminary hearing or, in the alternative, for a postindictment felony hearing.

The County Court Judge, in a decision stating that "a defendant has an absolute right to waive his presence at a preliminary hearing" and that "defendant has been deprived of a substantial right and this Court must determine whether the indictment should be dismissed with leave to present to another grand jury after defendant is afforded a preliminary hearing", granted the motion to the extent of ordering a preliminary hearing at the Town Court and staying all proceedings pending that hearing. The District Attorney then brought on the instant proceeding to prohibit respondents, the County Court Judge and the Town Court Justice, from enforcing the County Court order, on the ground that the County Court had exceeded its jurisdiction.

The Appellate Division granted the application and enjoined the holding of the hearing, stating that County Court had exceeded its jurisdiction and that the grounds stated in the motion were not sufficient in law to warrant dismissal of the indictment (102 A.D.2d 1022, 482 N.Y.S.2d 427).

Prohibition lies where there is a clear legal right and where a court acts without or in excess of jurisdiction over the subject matter, but does not lie, even if there has been an excess of jurisdiction, if there is available an adequate remedy, by way of appeal or otherwise (Matter of Morgenthau v. Erlbaum, 59 N.Y.2d 143, 464 N.Y.S.2d 392, 451 N.E.2d 150; Matter of Morgenthau v. Altman, 58 N.Y.2d 1057, 462 N.Y.S.2d 629, 449 N.E.2d 409; Matter of State of New York v. King, 36 N.Y.2d 59, 364 N.Y.S.2d 879, 324 N.E.2d 351; see Matter of Schumer v. Holtzman, 60 N.Y.2d 46, 467 N.Y.S.2d 182, 454 N.E.2d 522).

Here, because it was clear that if the hearing ordered by County Court was not held the indictment would be dismissed and the People have a right to appeal from such a dismissal (CPL 450.20, subd. 1), there was an adequate remedy other than prohibition.

Moreover, it cannot be said under the circumstances of this case that a clear legal right of the District Attorney was threatened by the order of the County Court, his office having agreed to the holding of a preliminary hearing without conditioning its agreement upon defendant's presence at the hearing. Involved at most for the District Attorney so far as defendant's nonappearance was concerned was the inconvenience of having to establish defendant's identity by a means other than corporeal identification (cf. People v. Brewster, 63 N.Y.2d 419, 482 N.Y.S.2d 724, 472 N.E.2d 686). True, the People, absent agreement, would have the right to seek an indictment before a preliminary proceeding had been held, but in light of their agreement it cannot be said that the County Court's order was in excess of jurisdiction any more than was the order involved in Matter of Morgenthau v. Altman (supra ), which concerned the order in which witnesses were to be presented before the Grand Jury. At most, it was an error of law not reviewable by prohibition, even though there may not have been (as here there was) a right of review by way of appeal.

SIMONS, Judge (dissenting).

Kevin Magee, appellant here and defendant in the underlying criminal prosecution, stands indicted for the crimes of burglary in the first degree, attempted rape in the first degree, sexual abuse in the first degree and assault in the third degree. After his indictment he moved in County Court for an order directing the District Attorney to conduct a preliminary hearing, asserting that he had been deprived of a substantial right because the District Attorney submitted the charges to the Grand Jury after a preliminary hearing had been scheduled in Town Court but before it had been conducted. Defendant premised his motion on his claim that the District Attorney had intended to use the hearing for an identification show up and that he had reneged on an agreement to proceed in Town Court because defendant had waived his appearance at the preliminary hearing and Town Court had confirmed his right to do so. Respondent County Judge granted the motion, directing the Town Court to conduct the hearing and staying all further proceedings until it was completed. Whether defendant could waive his appearance at a preliminary hearing or whether the District Attorney was seeking to "retaliate" against him for doing so, as defendant claims, is irrelevant. County Court could not confer jurisdiction upon a local court contrary to applicable constitutional and statutory provisions or grant defendant discovery rights where none exist. I would therefore affirm the judgment.

It is familiar law that the extraordinary remedy of prohibition lies only when necessary to prevent a body or officer acting in a judicial or quasi-judicial capacity from proceeding or threatening to proceed without or in excess of its jurisdiction (Matter of Schumer v. Holtzman, 60 N.Y.2d 46, 51, 467 N.Y.S.2d 182, 454 N.E.2d 522; Matter of Vega v. Bell, 47 N.Y.2d 543, 547, 419 N.Y.S.2d 454, 393 N.E.2d 450; Matter of Proskin v. County Ct., 30 N.Y.2d 15, 18, 330 N.Y.S.2d 44, 280 N.E.2d 875). Although the remedy has usually been limited to cases in which a court acts or threatens to act without jurisdiction, it is equally clear that the writ may be granted not only to restrain an unwarranted assumption of jurisdiction but also to restrain an inferior court from exceeding its authorized powers in a matter over which it has jurisdiction (Matter of Proskin v. County Ct., supra; Matter of Lee v. County Ct., 27 N.Y.2d 432, 436-437, 318 N.Y.S.2d 705, 267 N.E.2d 452, cert. den. 404 U.S. 823, 92 S.Ct. 46, 30 L.Ed.2d 39; Matter of Hogan v. Court of Gen. Sessions, 296 N.Y. 1, 8, 68 N.E.2d 849; People ex rel. Lemon v. Supreme Ct., 245 N.Y. 24, 35, 156 N.E. 84). Important corollaries to these rules hold that a prohibition court should not exercise its discretion to grant relief, even if jurisdiction is in issue, absent a clear legal right to the remedy (Matter of Schumer v. Holtzman, supra; Matter of Vega v. Bell, supra; 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, 62-63, 364 N.Y.S.2d 879, 324 N.E.2d 351) and that the writ is not available as a collateral means to attack legal error (Matter of State of New York v. King, supra; Matter of Roberts v. County Ct., 34 N.Y.2d 246, 248, 356 N.Y.S.2d 853, 313 N.E.2d 335).

Inasmuch as the judgment under review enjoins threatened actions of respondent Town Justices only, our inquiry must be directed to the jurisdiction of that court following indictment and, relatedly, to the power of County Court to confer jurisdiction on it to correct what County Court evidently perceived as a denial of defendant's discovery rights.

The Constitution provides that Town Courts shall have such jurisdiction as the Legislature shall provide except that the Legislature may not grant Town Courts jurisdiction to try felonies prosecuted by indictment (N.Y. Const., art. VI, § 17; see, also, id., § 15, subd. c; § 16, subd. d). Town Courts, along with other local courts, possess "preliminary jurisdiction" over felony charges but that jurisdiction is limited to arraigning defendants on felony complaints, assigning counsel, setting bail and, unless defendant waives the right, to conducting a preliminary hearing (CPL 1.20, subd. 25; 10.30, subd. 2; 180.10et seq.). The purpose of the preliminary hearing is to determine if there is sufficient evidence to establish reasonable cause to believe defendant has committed a felony and therefore to warrant holding him for the action of the Grand Jury (CPL 180.10, subd. 2; 180.70). If the magistrate determines that reasonable cause does not exist for the charge specified in the felony complaint, he may reduce the charge to one the evidence will support or dismiss the complaint and release defendant from jail or exonerate his bail (CPL 180.30, 180.50, 180.70). Defendant has no constitutional or statutory right to a preliminary hearing, however (United States ex rel. Hughes v. Gault, 271 U.S. 142, 149, 46 S.Ct. 459, 459, 70 L.Ed. 875; Goldsby v. United States, ...