Morgenthau v. Erlbaum

• Court: New York Court of Appeals
• Writing for the Court: COOKE
• Citation: 59 N.Y.2d 143,464 N.Y.S.2d 392,451 N.E.2d 150
• Parties: , 451 N.E.2d 150 In the Matter of Robert M. MORGENTHAU, as District Attorney of New York County, Respondent, v. William M. ERLBAUM, a Judge of the Criminal Court of the City of New York, New York County, et al., Appellants.
• Decision Date: 07 June 1983

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464 N.Y.S.2d 392 59 N.Y.2d 143, 451 N.E.2d 150 In the Matter of Robert M. MORGENTHAU, as District Attorney
of New York County, Respondent,
v.
William M. ERLBAUM, a Judge of the Criminal Court of the
City of New York, New York County, et al., Appellants. Court of Appeals of New York. June 7, 1983.

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Richard Emery, New York City, for William M. Erlbaum, appellant, and Seymour S. Detsky, New York City, for Carol Link and another, appellants.

Robert M. Morgenthau, Dist. Atty., New York City (Robert M. Pitler and Amyjane Rettew, New York City, of counsel), for respondent pro se.

OPINION OF THE COURT

COOKE, Chief Judge.

On rare occasions, a criminal court will make an interlocutory ruling in favor of a defendant that will both affect fundamental rights and have implications reaching far beyond the immediate case in which the order is made. In such situations and when the controversy is purely a legal one, an independent action for declaratory relief against the ruling Judge may be allowed where the circumstances warrant.

Respondent William M. Erlbaum is a Judge of the Criminal Court of the City of

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New York, New York County. In 1981, two women accused of prostitution, which carries a three-month maximum sentence, appeared before Judge Erlbaum and moved for trial by jury. The defendants argued that CPL 340.40 (subd. 2), directing that crimes punishable by not more than six months' incarceration shall be heard before a Judge, was unconstitutional because it deprived them of their Sixth Amendment right to jury trial and denied them equal protection of the law. The court granted their motion, reasoning that, notwithstanding its relatively minor sentence, prostitution is a "serious" crime with a concomitant right to trial by jury (see People v. Link, 107 Misc.2d 973, 436 N.Y.S.2d 581). The defendants' equal protection argument was not reached (see id., at p. 980, 436 N.Y.S.2d 581).

Petitioner, the District Attorney of New York County, commenced this proceeding to prevent respondent's order from taking effect. Initially, the matter was instituted under CPLR article 78 to obtain a writ of prohibition. Petitioner moved to convert the proceeding into an action for declaratory judgment after this court stated that prohibition is not available to attack a criminal court's ruling that a statute denying a trial by jury is unconstitutional (see Matter of Gold v. Gartenstein, 54 N.Y.2d 627, 442 N.Y.S.2d 504, 425 N.E.2d 892). Special Term granted the motion to convert and declared that CPL 340.40 (subd. 2) is constitutional. The Appellate Division, 89 A.D.2d 1062, 454 N.Y.S.2d 487, First Department, affirmed, but without opinion.

Two issues are presented on this appeal. The first is the procedural propriety of an action seeking declaratory relief that, in effect, collaterally attacks a criminal court's ruling. The other matter, assuming that the action is proper, is whether CPL 340.40 (subd. 2) violates the Sixth Amendment. ¹

In determining whether an action for declaratory judgment lies in the present circumstances, it is helpful to distinguish the action from the extraordinary remedy of prohibition, and to examine the policies underlying the decisions limiting the issuance of writs of prohibition.

A writ of prohibition may be obtained only when a clear legal right of a petitioner is threatened by a body or officer acting in a judicial or quasi-judicial capacity " 'without jurisdiction in a matter over which it has no power over the subject matter or where it exceeds its authorized powers in a proceeding over which it has jurisdiction' " (Matter of Dondi v. Jones, 40 N.Y.2d 8, 13, 386 N.Y.S.2d 4, 351 N.E.2d 650, quoting Matter of State of New York v. King, 36 N.Y.2d 59, 62, 364 N.Y.S.2d 879, 324 N.E.2d 351; see, also, La Rocca v. Lane, 37 N.Y.2d 575, 578-579, 376 N.Y.S.2d 93, 338 N.E.2d 606). It may not issue against legislative, executive, or ministerial action (see Matter of Dondi v. Jones, supra ). The decision to issue the writ is left to the court's sound discretion, which is to be exercised after consideration of various factors (see id.; La Rocca v. Lane, supra ). In light of the reluctance to interfere with the normal, orderly administration of justice, an important factor is the adequacy of other legal remedies to correct the asserted error (see Matter of Dondi v. Jones, supra; La Rocca v. Lane, supra ); if there is an adequate "ordinary" remedy, then there is no need to invoke an extraordinary remedy.

With reference to declaratory relief, it should first be noted that it is not an extraordinary remedy (see 1 Anderson, Declaratory Judgments § 197, p. 408; Borchard, Declaratory Judgments pp. 360-361; cf. Borchard, Declaratory Judgments, 1939, 9

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Bklyn.L.Rev. 1, 4, 14; Breese, Atrocities of Declaratory Judgments Law, 31 Minn.L.Rev. 575, 579, 595; compare CPLR 3001 with CPLR 7801). Instead, a declaratory judgment "is a remedy sui generis and escapes both the substantive objections and procedural limitations of special writs and extraordinary remedies" (Borchard, Declaratory Judgments, 1939, 9 Bklyn.L.Rev., at p. 14). Unlike prohibition, its use is not limited to reviewing public acts of a judicial nature. Rather, it has broad application, being invoked to declare rights derived from both private and public law (see id., at p. 9, & nn. 21-29), and from both civil (see, e.g., Quaker Oats i Co. v. City of New York, 295 N.Y. 527, 68 N.E.2d 593) and criminal statutes (see, e.g., Fenster v. Leary, 20 N.Y.2d 309, 282 N.Y.S.2d 739, 229 N.E.2d 426). Critically, declaratory judgment does not entail coercive relief, but only provides a declaration of rights between parties that, it is hoped, will forestall later litigation (see New York Public Interest Group v. Carey, 42 N.Y.2d 527, 530-531, 399 N.Y.S.2d 621, 369 N.E.2d 1155; Borchard, Declaratory Judgments, 1939, 9 Bklyn.L.Rev., at p. 4; Note, Developments In the Law--Declaratory Judgments--1941-1949, 62 Harv.L.Rev. 787, 787-790; Note, Effect of Availability of Coercive Relief Upon the Declaratory Judgment, 8 Bklyn.L.Rev. 321). In other words, the declaration in the judgment itself cannot be executed upon so as to compel a party to perform an act or to surrender property.

As with prohibition, granting declaratory judgment is left to the court's discretion (CPLR 3001). In keeping with the remedy's nonextraordinary nature, however, the court has a broader power to grant declaratory judgment than it does with prohibition. It may decline to hear the matter if there are other adequate remedies available, and it must dismiss the action if there is already pending between the parties another action in which all the issues can be determined (see Woollard v. Schaffer Stores Co., 272 N.Y. 304, 311, 5 N.E.2d 829). The mere existence of other adequate remedies, however, does not require dismissal: "We have never gone so far as to hold that, when there exists a genuine controversy requiring a judicial determination, the Supreme Court is bound, solely for the reason that another remedy is available, to refuse to exercise the power conferred by (id., at pp. 311-312, 5 N.E.2d 829). ²

In summary, declaratory relief is available in a wider range of circumstances than is prohibition. The jurisdictional impediments to obtaining declaratory judgment are virtually coextensive with those to any normal lawsuit, while a writ of prohibition, by definition, may be granted only in restricted situations. Insofar as strictly jurisdictional factors are concerned, then, there is nothing to bar a District Attorney from seeking an interpretation of a penal statute.

Policy considerations, however, may militate against entertaining an action for declaratory judgment that is instituted to challenge a criminal court's ruling. On this basis, both declaratory relief and prohibition have been limited as a means for attacking penal statutes or court rulings. On reviewing the reasons underlying those decisions, it is concluded that the action here is proper.

In the past, prohibition was deemed a proper vehicle for challenging an interlocutory order of a criminal court. In People ex rel. Lemon v. Supreme Ct. of State of N.Y., 245 N.Y. 24, 156 N.E. 84, the court approved the issuance of a writ to prohibit a trial court from enforcing an order requiring the prosecutor to divulge information to a criminal defendant. Chief Judge Cardozo, writing for the court, noted that prohibition was appropriate because the order could not be appealed, that there was no other remedy available, and that "course of the trial might be changed with the possible result that justice would miscarry, for a penalty of disobedience was to be the exclusion of the evidence" (id., 245 N.Y. at p. 35, 156 N.E. 84). This position was tacitly reaffirmed

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in Matter of...