Pirro v. LaCava

• Decision Date: 26 August 1996
• Citation: 646 N.Y.S.2d 866,230 A.D.2d 909
• Court: New York Supreme Court — Appellate Division
• Parties: In the Matter of Jeanine PIRRO, etc., Petitioner, v. John R. LaCAVA, etc., et al., Respondents.

Page 866

646 N.Y.S.2d 866

230 A.D.2d 909

In the Matter of Jeanine PIRRO, etc., Petitioner, v. John R. LaCAVA, etc., et al., Respondents.

Supreme Court, Appellate Division,

Second Department.

Aug. 26, 1996.

Jeanine Pirro, District Attorney, White Plains (Robert K. Sauer, Diane E. Selker, and Richard E. Weill, of counsel), petitioner pro se.

John R. LaCava, White Plains, respondent pro se.

Sonya A. Zoghlin, New York City, for respondent Anthony LaFontant.

Before BRACKEN, J.P., and ROSENBLATT, RITTER, THOMPSON and SULLIVAN, JJ.

MEMORANDUM BY THE COURT.

Proceeding pursuant to CPLR article 78 to prohibit the enforcement of (1) an order of the County Court, Westchester County, entered March 5, 1996, which granted the pre-indictment application of Anthony LaFontant, a defendant in an underlying criminal action entitled People v. LaFontant under Westchester County Index No. 96-00311, which potentially involved the imposition of the death penalty, inter alia, to compel the Office of the District Attorney of Westchester County to preserve all evidence related to the criminal investigation, (2) an order of the same court, entered April 2, 1996, which granted the pre-indictment application of Anthony LaFontant for the issuance of a subpoena duces tecum directing the Office of the Chief Medical Examiner to produce certain material relating to the autopsy examination of the victim, Samuel Diaz, and (3) an order of the same court, entered April 9, 1996, which granted the pre-indictment application of Anthony LaFontant to allow the inspection and documentation of the victim's home.

ADJUDGED that the petition is granted, without costs or disbursements, and the enforcement of the three orders of the County Court, Westchester County, entered March 5, 1996, April 2, 1996, and April 9, 1996, respectively, which were issued in the criminal action, is prohibited.

The issues raised in this proceeding are worthy of review, even though the respondent Anthony LaFontant has pleaded guilty to one count of murder in the second degree in full satisfaction of the indictment in the underlying criminal action. The mootness doctrine should not be applied where, as here, the issues raised are of public importance, are likely to recur, and are likely to evade ordinary appellate review (see, People ex rel. Neufeld v. McMickens, 117 A.D.2d 243, 503 N.Y.S.2d 397, rev'd on other grounds 70 N.Y.2d 763, 520 N.Y.S.2d 744, 514 N.E.2d 1368).

This court has previously held that prohibition may be an appropriate remedy where the County Court or Supreme Court exceeds its statutory authority by ordering the People to make disclosure which they are not required to make pursuant to the governing statutes (see, Matter of Catterson v. Rohl, 202 A.D.2d 420, 608 N.Y.S.2d 696; Matter of Hynes v. Cirigliano, 180 A.D.2d 659, 579 N.Y.S.2d 171; see also, Matter of Kaplan v. Tomei, 224 A.D.2d 530, 638 N.Y.S.2d 350). We do not agree with the County Court that the present case may be distinguished from the cases cited above on the theory that it is not "discovery" which LaFontant is seeking.

In the above-cited cases, we held that the County Court and the Supreme Court may not grant discovery applications in criminal actions for which there is no statutory...