Morgenthau v. Erlbaum, Docket Nos. N968606 and N968607

• Decision Date: 10 November 1981
• Docket Number: Docket Nos. N968606 and N968607,R
• Citation: 445 N.Y.S.2d 997,112 Misc.2d 30
• Parties: In the Matter of the Application of Robert M. MORGENTHAU, District Attorney of New York County, on behalf of the People of the State of New York, Petitioner, For a judgment pursuant to Article 78 of the Civil Practice Law and Rules, v. William M. ERLBAUM, a Judge of the Criminal Court of the City of New York, New York County; the Judges of the Criminal Court of the City of New York, New York County: and Carol Link and Debra Meltsner, defendants in the Criminal Court of the City of New York, New York County, New York Countyespondents.
• Court: New York Supreme Court

Page 997

445 N.Y.S.2d 997

112 Misc.2d 30

In the Matter of the Application of Robert M. MORGENTHAU District Attorney of New York County, on behalf of the People of the State of New York, Petitioner For a judgment pursuant to Article 78 of the Civil Practice Law and Rules, v. William M. ERLBAUM, a Judge of the Criminal Court of the City of New York, New York County; the Judges of the Criminal Court of the City of New York, New York County and Carol Link and Debra Meltsner, defendants in the Criminal Court of the City of New York, New York County, New York County Docket Nos. N968606 and N968607, Respondents.

Supreme Court, Special Term New York County, Part 1.

Nov. 10, 1981.

Robert M. Morgenthau, Dist. Atty. of New York County (Amy Jane Rettew, New York City, of counsel) for petitioner.

Richard Emery and Robert Abrams, Atty. Gen., New York City (Susan L. Yarbrough, New York City, of counsel) for respondent Erlbaum.

Kenneth Fields, New York City, for respondents Link and Meltsner.

PECORA, Judge:

Motions under calendar numbers 100, 101 and 102 are consolidated for disposition.

Petitioner Robert M. Morgenthau, District Attorney of New York County, moves for a judgment, pursuant to Article 78 of the CPLR, to prohibit enforcement by Judge William M. Erlbaum, or any other judge of the Criminal Court of New York County, of an order of that court dated February 23, 1981. Respondent Erlbaum moves to dismiss pursuant to CPLR § 7804(f).

The factual background is as follows: on February 23, 1981, Judge Erlbaum rendered a decision in People v. Link and Meltsner, 107 Misc.2d 973, 436 N.Y.S.2d 581, wherein he declared Criminal Procedure Law § 340.40(2) unconstitutional in that it denied a jury trial to persons charged with the crime of prostitution in the City of New York. In essence, Judge Erlbaum's order rested on the premise that prostitution, although punishable by only three-months imprisonment, is a "serious" offense for which jury trials are mandated by the Sixth Amendment to the United States Constitution. Petitioner's initial motion was in the nature of a writ of prohibition to prevent implementation of the subject decision of Judge Erlbaum and to restrain other judges from acting in a similar manner in regard to prostitution cases. Petitioner thereafter moved for an order converting this proceeding to an action for declaratory judgment.

This is the type of case which, in this court's opinion is ripe for declaratory judgment. The only issue is one of law. The parties herein all have a stake in its outcome sufficient to ensure adequate adversary presentation of all the pertinent questions of law. A judgment in this case would resolve the constitutionality of CPL § 340.40(2) for all prostitution cases, whereas a dismissal would leave the criminal courts in a state of confusion and disuniformity. We are bound by the decision in Gold v. Gartenstein, 54 N.Y.2d 627, 442 N.Y.S.2d 504, 425 N.E.2d 892, (1981) holding that prohibition is not an appropriate remedy in this type of case, but this court is not foreclosed from exercising its jurisdiction under CPLR Article 30.

As a general rule, mere errors of law by a Criminal Court Judge are not appealable collaterally. It is only in cases where the judge has exceeded his authorized powers that this court may review an interlocutory order of the Criminal Court. Matter of Lee v. County Court of Erie County, 27 N.Y.2d 432, 318 N.Y.S.2d 705, 267 N.E.2d 452 (1971); Proskin v. County Court of Albany County, 30 N.Y.2d 15, 330 N.Y.S.2d 44, 280 N.E.2d 875 (1972); Matter of State v. King, 36 N.Y.2d 59, 364 N.Y.S.2d 879, 324 N.E.2d 351 (1975).

The justification for this rule was best explained in King, supra, at p. 63, 364 N.Y.S.2d 879, 324 N.E.2d 351:

"Litigation may be compounded unduly by protracted and multifarious appeals and collateral proceedings frustrating the speedy determination of disputes.... 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".

Nevertheless, the Court of Appeals has permitted the Supreme Court to grant relief in the nature of prohibition "to restrain an inferior court from exceeding its authorized powers in a proceeding over which it has jurisdiction". Lee, supra, 27 N.Y.2d at p. 437, 318 N.Y.S.2d 705, 267 N.E.2d 452.

Thus, in Proskin, supra, the Court held that an order granting a defendant unlimited inspection of grand jury minutes to help him prepare his defense was an excess of authority for which prohibition was a proper remedy. See also, Jaffe v. Scheinman, 47 N.Y.2d 188, 417 N.Y.S.2d 241, 390 N.E.2d 1165 (1979).

In La Rocca v. Lane, 37 N.Y.2d 575, 376 N.Y.S.2d 93, 338 N.E.2d 606 (1979) the Court held that a Criminal Court Judge's order prohibiting an attorney from wearing his clerical garb in court was collaterally appealable under Article 78 (the court ultimately resolved the merits against the attorney). It is clear that "there is no sharp line between a court acting in error under substantive or procedural law and a court acting in excess of its powers". La Rocca, supra, at p. 580, 376 N.Y.S.2d 93, 33 N.E.2d 606 "Accordingly, in deciding whether or not an order should be collaterally appealable, the courts should consider several important factors, namely, "the gravity of the harm caused by the excess of power, the availability or unavailability of an adequate remedy on appeal ... and the ... effectiveness of prohibition if such an adequate remedy does not exist". Matter of Dondi v. Jones, 40 N.Y.2d 8 at p. 13, 386 N.Y.S.2d 4, 351 N.E.2d 650; La Rocca, supra, at p. 579-80, 376 N.Y.S.2d 93, 338 N.E.2d 606.

In distinguishing Proskin, the Court in King stated: "Not necessary to the result in Proskin, but relevant to the broad policy determining the interplay of actions and special proceedings arising from them, the review by prohibition of the order of inspection in that case did not delay the criminal action, but removed a major impetus to delay in the action and the prosecution of the other 15 indictments". King at p. 64, 364 N.Y.S.2d 879, 324 N.E.2d 351.

In the case at bar, denying the right to a collateral appeal will only serve to create more delay in the criminal justice system by permitting Judge Erlbaum, and any other judge, to grant jury trials for every prostitution case before them. In addition, if review is not available in this case, there would be nothing to stop any judge from holding that any petty crime is "serious" and ordering a jury trial. The resulting confusion resulting from a holding of non-reviewability far outweighs the burden of a collateral proceeding.

The petitioner herein has no adequate remedy at law. If the defendants Link and Meltsner are acquitted, there can be no appeal; if they are convicted, the District Attorney still cannot appeal from the prejudicial order. In short, a dismissal in this case will delay the speedy implementation of justice that the rule...