People v. Granatelli

• Decision Date: 30 April 1981
• Citation: People v. Granatelli, 438 N.Y.S.2d 707, 108 Misc.2d 1009 (N.Y. Sup. Ct. 1981)
• Parties: The PEOPLE of the State of New York v. David GRANATELLI et al., Defendants.
• Court: New York Supreme Court

Page 707

438 N.Y.S.2d 707

108 Misc.2d 1009

The PEOPLE of the State of New York v.David GRANATELLI et al., Defendants.

Supreme Court, Criminal Term Suffolk County, Part II.

April 30, 1981.

Patrick Henry, Dist. Atty. of Suffolk County, by Philip Castellano, Jr., and Maureen S. Hoerger, Asst. Dist. Attys., Hauppauge, for plaintiff.

Baum, Skigen & Kornreich, Smithtown, for defendant Granatelli by Robert H. Skigen, Smithtown.

Paul A. Feigenbaum, New York City, for Hon. Herbert B. Evans, Chief Administrative Judge of NYS amicus curiae.

JOSEPH JASPAN, Justice.

The defendantDavid Granatelli is charged with Criminal Sale of a Controlled Substance in the Second Degree, Criminal Possession of a Controlled Substance in the Third Degree and Criminal Possession of a Controlled Substance in the Fourth Degree.

The case was presented to the Grand Jury and the instant indictment was handed up on October 29, 1980.On October 31, 1980Hon. Thomas M. Stark, Supervising Judge of the Criminal Branch of the Superior Courts in Suffolk County, on his own motion, pursuant to Section 230.10 C.P.L.andRule 681.1(b) of the Rules of the Appellate Division, Second Department, transferred the instant indictment to this court for all purposes.

The defendant was thereafter arraigned on the aforementioned charges and entered a plea of not guilty.

He now moves to have Judge Stark's assignment of his case to this court declared null and void upon the grounds that:

(1) the designation as Supervising Judge was never filed with the Department of State as required by New York State Constitution Article 4, Section 8 and with the Administrative Board as required by Rule 20.8 of the Codes, Rules and Regulations of the State of New York(22 N.Y.C.R.R. Section 20.8) and further

(2) Judge Stark's appointment was never published in the official compilation of the codes, rules and regulations of the State of New York(Executive Law Sections 102 through 106).

It is also contended that even if Judge Stark's appointment is found to be proper, defendant's due process rights have been violated, since it is Judge Stark's practice to assign all "Rackets"cases to this court.The defendant claims that control of the assignment of a case is then vested in the District Attorney who may arbitrarily affix the designation of the "Rackets" to any case.

The court notes at the outset that the defendant specifically states in his motion papers:

"The movant is not claiming that Judge Jaspan's knowledge of either the defendant's background or the fact that this is a Rackets case prejudices the defendant's right to a fair trial so as to be constitutionally impermissible."

I.Historical Background of Judge Stark's Designation as Supervising Judge

Article 6 of the New York State Constitution(the Judiciary Article) was amended as of September 1, 1962 to provide for a unified court system.

Effective January 1, 1978Article 6 was further amended with respect to the manner of selecting judges of the Court of Appeals, the creation of a commission on judicial conduct and the administration of the unified court system.

Specifically, Section 28 of Article 6 now designates the Chief Judge of the Court of Appeals as the chief judicial officer of the unified court system and establishes an administrative board.The Chief Judge, with the advice and consent of the administrative board, is authorized to appoint a Chief Administrator (Section 28(a)) who shall supervise the unified court system with such powers and duties as delegated to him by the Chief Judge or as may be provided by law (Section 28(b)).The Chief Judge was also directed to establish standards and administrative policies "for general application throughout the state"(Section 28(c);emphasis added).

Effective April 1, 1978Hon. Charles D. Breitel, then serving as Chief Judge, promulgated "Standards and Administrative Policies" for the unified court system.The preamble to those policies states: purpose of these standards and policies is to assign and regulate administrative authority in a complex, multi-tiered court system" (McKinney's Session Laws of N.Y.1978, Appendix I, p. 1918).

Those standards and policies also provide that the Chief Administrator in consultation with the Presiding Justices of the appropriate Appellate Divisions is empowered to establish "the regular hours, terms, and parts of court, and assignments of judges and justices to them" (McKinney's Session Laws ofN.Y., 1978, p. 1918, § 1, subd. Paragraph 1(e) further provides that the Chief Administrator in consultation with the Presiding Justices of the appropriate Appellate Divisions and the approval of the Chief Judge may designate deputy chief administrators and administrative judges.(p. 1919).

Also effective April 1, 1978 the Chief Judge delegated to the Chief Administrator (Chief Judge's Administrative Delegation, McKinney's Session Laws of N.Y., Appendix II, p. 1920) the following powers and duties:

"deputies and administrative judges in accordance with Section 2.The Chief Administrator may delegate to any deputy, administrative judge, assistant, or court any administrative power or function delegated to the Chief Administrator"(Paragraph 1(b)(iv)).

Section 2 of Appendix IIat p. 1921 provides that the Chief Administrator shall designate deputy chief administrators and administrative judges for each judicial district--including separate administrative judges for Nassau and Suffolk counties (Paragraph 2(a)(ii)) and "other supervising judges as may be required"(Paragraph 2(a)(iii)).

The powers of the Chief Judge and Chief Administrator were then codified in "Article 7-A Judicial Administration" of the Judiciary Law, Sections 210-216(McKinney's Session Laws of N.Y., L.1978, ch. 156; Eff 5/19/78 and chs. 628 and 629, effective 7/24/78).

Pursuant to the powers granted to the Chief Judge, he appointed the Hon. Richard J. Bartlett as the Chief Administrator of the Unified Court System.

On October 1, 1978 Judge Bartlett made the following designation in writing:

"In consultation with the presiding Judge of the Appellate Division Second Department and with the approval of the Chief Judge of the Court of Appeals, I appoint the Honorable Thomas J. Stark as Supervising Judge of the Criminal Branch of the Superior Courts in Suffolk County, effective immediately."

Although that appointment was never filed with the State Department, Judge Stark has been acting in this supervisory capacity from the date of that designation to the present and pursuant to the powers granted to him by that appointment has assigned literally thousands of criminal cases to various Criminal Parts of the Supreme and County Courts.

II.The Failure to File Judge Stark's Designation with the Secretary of State is Not Violative of the State Constitution

Section 8 of Article 4(the "Executive"Article) of the New York State Constitution provides that

"No rule or regulation made by any state department, board, bureau, officer, authority or commission, except such as relates to the organization or internal management of a state department, board, bureau, authority or commission, shall be effective until it is filed in the office of the department of the state.The legislature shall provide for the speedy publication of such rules and regulations, by appropriate laws."(emphasis added)

The intended purpose of this filing requirement was to insure that all rules and regulations which affect the public can be readily found in "one, easily available, central place"(People v. Cull, 10 N.Y.2d 123, 218 N.Y.S.2d 38, 176 N.E.2d 495;People v. Stock, 88 Misc.2d 1058, 390 N.Y.S.2d 367).

Our State government, like the Federal government, is a tripartite institution with power variously apportioned among the Legislative (N.Y.S.Const., Article 3), the Executive (N.Y.S.Const., Article 4) and the Judicial (N.Y.S.Const., Article 6) branches.Each branch is separate, independent and co-equal, possessing inherent powers to protect itself from impairment of function (County of Oneida v. Berle, 49 N.Y.2d 515, 427 N.Y.S.2d 407, 404 N.E.2d 133;Saxton v. Carey, 44 N.Y.2d 545, 406 N.Y.S.2d 732, 378 N.E.2d 95;People ex rel. Broderick v. Morton, 156 N.Y. 136, 50 N.E. 791;Slewett and Farber v. Board of Assessors and the Board of Assessment Review of the County of Nassau, 78 A.D.2d 403, 435 N.Y.S.2d 313).In this regard, one branch of government may not encroach on the jurisdiction of another nor impede another in carrying out its duties and responsibilities (People ex rel. Burby v. Howland, 155 N.Y. 270, 49 N.E. 775;Matter of Lorie C., 49 N.Y.2d 161, 424 N.Y.S.2d 395, 400 N.E.2d 336;Gottlieb v. Duryea, 38 A.D.2d 634, 326 N.Y.S.2d 889, aff'd.30 N.Y.2d 807, 334 N.Y.S.2d 904, 286 N.E.2d 278, cert. den.409 U.S. 1008, 93 S.Ct. 439, 34 L.Ed.2d 300;Ascione v. City of New York, 84 Misc.2d 414, 379 N.Y.S.2d 599, mod. on other grounds sub nom.Blyn v. Bartlett, 50 A.D.2d 442, 379 N.Y.S.2d 616, aff'd.39 N.Y.2d 349, 384 N.Y.S.2d 99, 348 N.E.2d 555).

At issue is whether the Judicial branch of the government must file its rules and regulations pursuant to Section 8 of the Executive Article(Article 4) of the Constitution.Stated alternatively, does Section 8 set forth a "textually demonstrable constitutional commitment of the issue to a coordinate political department"(Powell v. McCormack, 395 U.S. 486, 518, 89 S.Ct. 1944, 23 L.Ed.2d 491).

In order to determine the scope of any "textual commitment"the court must consider the meaning of the phrase "rule or regulation made by any state department, board, bureau, officer, authority or commission."

The term "rule or regulation" has not been the subject of a precise definition.However, it is well established that this term as employed in Section 8 refers to those administrative enactments which are of a legislative or quasi-legislative nature and which establish a pattern or course of conduct for the future (People v. Cull, supra;...