Premo v. Breslin

• Decision Date: 11 July 1996
• Citation: 645 N.Y.S.2d 153,229 A.D.2d 693
• Parties: In the Matter of Brian D. PREMO, Petitioner, v. Thomas A. BRESLIN, as Judge of the County Court of Albany County, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 153

645 N.Y.S.2d 153

229 A.D.2d 693

In the Matter of Brian D. PREMO, Petitioner, v. Thomas A. BRESLIN, as Judge of the County Court of Albany County, Respondent.

Supreme Court, Appellate Division,

Third Department.

July 11, 1996.

Mackrell, Rowlands, Premo & Pierro, P.C. (Brian D. Premo of counsel), Albany, petitioner in person.

Dennis C. Vacco, Attorney General (Peter G. Crary of counsel), Albany, for respondent.

Before MIKOLL, J.P., and MERCURE, CREW, YESAWICH and PETERS, JJ.

MIKOLL, Justice Presiding.

Proceeding pursuant to CPLR article 78 (initiated in this court pursuant to CPLR 506[b][1] ) to prohibit respondent from imposing a sanction on petitioner pursuant to 22 NYCRR part 130.

Oral Harris, a defendant in a criminal action, was indicted on June 16, 1995 on five counts charging various sex offenses in connection with the alleged rape and sodomy of a 14-year-old girl. Harris was represented by prior counsel until said counsel was discharged and, on October 19, 1995, the law firm of Mackrell, Rowlands, Premo and Pierro, P.C. was retained by Harris and substituted as his attorney. Petitioner is a member of the firm.

On October 30, 1995, at approximately 9:00 A.M., respondent's secretary notified petitioner's secretary by phone that pretrial hearings in the case were scheduled for Thursday, November 2, 1995 at 1:00 P.M. Petitioner did not contact County Court to seek an adjournment of the scheduled hearings until the afternoon of November 1, 1995. Petitioner attended the hearing, announced on the record that he was prepared to go forward but "would like to make [a] record of some of the facts so my client fully understands where we stand". Petitioner then explained that he had been engaged with other matters outside the office, in Federal court and in perfecting an appeal to the Third Department, so that prior to "today I was unavailable to my client to prepare for the hearing". Respondent then asked petitioner when he made the court aware of this fact. Petitioner explained that he was out of his office and misunderstood what his secretary had told him. He believed his secretary had told respondent's secretary that petitioner was involved in a civil case and would not be available for the hearings and that respondent's secretary would inform respondent and call back "and confirm whether the hearing was scheduled or not". Petitioner further informed respondent that, "In any event I unfortunately have not had the opportunity to talk at length with Mr. Harris about the scope of the hearing and about whether he would testify at the hearing and so forth. I am, however, prepared."

Respondent then remarked, "You are telling me you are not ready to proceed today then. Fine. Tell me why I shouldn't sanction you." Petitioner explained that he was unavailable and that he understood that County Court was supposed to confirm the hearing schedule with petitioner's office.

Respondent concluded the colloquy on November 2, 1995 by adjourning the case because of petitioner's failure to be prepared and imposed a $250 sanction against petitioner. In an order signed November 3, 1995 and entered November 6, 1995, respondent recited, inter alia, that the matter had come on for a suppression hearing, that petitioner appeared but indicated on the record that he was not prepared to go forward "and as such the hearing must be adjourned". The order also recited that petitioner "had full opportunity to explain his situation for his unpreparedness".

Petitioner commenced the instant CPLR article 78 proceeding seeking a writ of prohibition reversing and annulling respondent's imposition of sanctions for allegedly appearing unprepared, claiming that respondent's action was arbitrary, capricious and an abuse of discretion. A remittal is required. Respondent had authority to impose sanctions but improperly failed to state why the unpreparedness was without good cause (see, 22 NYCRR 130-2.2).

Petitioner's argument that this court should grant the extraordinary remedy of prohibition because 22 NYCRR 130-2.1 does not confer authority upon respondent to issue sanctions upon an attorney for lack of preparation is without merit. In our view, 22 NYCRR 130-2.1(a) contemplates that an attorney be physically present and prepared to proceed with the hearing as scheduled. This is clear when we consider the language of 22 NYCRR 130-2.1(b)(4) providing that, in determining good cause and the sanction to be imposed, a court must consider whether substitute counsel appeared to proffer an explanation and "whether such substitute counsel was prepared to go forward with the case". This language indicates that the purpose of the rule is to insure that the attorney appear and be prepared to go forward. Thus, the rule in question conferred authority upon respondent to issue sanctions. The rule would be meaningless if the attorney was merely required to be physically present but not prepared and ready to proceed (see, e.g., People v. I. L., 143 Misc.2d 1061, 1066-1067, 542 N.Y.S.2d 125).

The record also contains sufficient evidence to permit respondent to find that petitioner was unprepared to go forward with the suppression hearing based on petitioner's own words in open court. However, neither respondent's written order nor the transcript of the proceedings indicates that respondent considered whether petitioner's lack of preparation was without good cause (see, 22...