Rush v. Mordue

• Decision Date: 18 November 1986
• Parties: , 502 N.E.2d 170 In the Matter of Anthony RUSH, Respondent, v. Norman MORDUE, as County Court Judge for the County of Onondaga, et al., Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 493

509 N.Y.S.2d 493

68 N.Y.2d 348, 502 N.E.2d 170

In the Matter of Anthony RUSH, Respondent, v. Norman MORDUE, as County Court Judge for the County of Onondaga, et al., Appellants.

Court of Appeals of New York.

Nov. 18, 1986.

Richard A. Hennessy, Jr., Dist. Atty. (John A. Cirando and Maureen A. MacPherson, Syracuse, of counsel), for appellants.

Langston C. McKinney, Syracuse, for respondent.

OPINION OF THE COURT

ALEXANDER, Judge.

Where a witness is called before a Grand Jury and, without having executed a waiver of immunity, gives testimony concerning the truthfulness of a prior sworn statement and disavows that prior statement as having been false when given, transactional immunity resulting from the compelled testimony is acquired with respect to that prior statement, and the witness may not thereafter be prosecuted for perjury based upon the inconsistency between the prior sworn statement and the Grand Jury testimony. Where such prosecution is threatened, a writ of prohibition under CPLR article 78 will lie to raise the claim of immunity and interdict the prosecution.

I

While standing outside a liquor store in Syracuse with two other men, petitioner Anthony Rush heard shots ring out. He was questioned by the police during the ensuing investigation and told them he saw one of the men, Lucas Bouges, shoot the victim, Leroy Johnson. He signed a sworn statement to that effect, which was the basis for the subsequent issuance of a felony complaint (CPL 100.20) and the arrest of Bouges. In the course of seeking an indictment against Bouges, the People called Rush to testify before the Grand Jury. Rush, without executing a waiver of immunity, told the Grand Jury he had lied in his sworn statement to the police; that in fact he never had seen Bouges shoot Johnson. Thereafter, a separate Grand Jury indicted Rush for the crime of second degree perjury (Penal Law § 210.10) charging that he swore falsely either when he gave his sworn statement to the police, or when he testified before the Grand Jury, because the statements were so inconsistent that one of them was necessarily false (Penal Law § 210.20). Rush moved to dismiss the indictment claiming that because he was granted transactional immunity in exchange for compelled testimony, he could not be prosecuted for any crime (including perjury) on the basis of his sworn police statement, nor could the People use the police statement as evidence against him in a prosecution for perjury allegedly committed before the Grand Jury. Trial court denied the motion but found that although the evidence was insufficient to support a charge of perjury in the second degree, it was sufficient to support the lesser included crime of perjury in the third degree. Trial court also rejected Rush's immunity claim, holding that a Grand Jury witness has no immunity against a charge of perjury knowingly and intentionally committed before the same body. Rush then commenced a CPLR article 78 proceeding in the nature of prohibition at the Appellate Division seeking to enjoin his prosecution under the perjury indictment.

The Appellate Division granted Rush's petition and dismissed the indictment, concluding that a proceeding pursuant to article 78 seeking a writ of prohibition is available to assert a claim of immunity from prosecution, and that, because Rush had acquired immunity from prosecution for and therefore could not be convicted of perjury as to the sworn statement given to the police, an indictment that would permit the jury to return a perjury conviction based on that sworn statement was fatally defective, and the court was without jurisdiction to try him thereunder. We granted leave to appeal (67 N.Y.2d 604, 501 N.Y.S.2d 1023, 492 N.E.2d 400). ¹

II

The initial question we consider is whether the remedy of prohibition under CPLR article 78 is available to a petitioner to raise a claim of immunity from prosecution. We again observe that although CPLR 7803(2) authorizes a proceeding under article 78 to test "whether the body or officer proceeded, is proceeding or is about to proceed without or in excess of jurisdiction", ² the extraordinary remedy of prohibition lies only where there is a clear legal right, and only when a court (if a court is involved) acts or threatens to act either without jurisdiction or in excess of its authorized powers in a proceeding over which it has jurisdiction (Matter of Steingut v. Gold, 42 N.Y.2d 311, 315, 367 N.Y.S.2d 765, 366 N.E.2d 854; Matter of Dondi v. Jones, 40 N.Y.2d 8, 13, 386 N.Y.S.2d 4, 351 N.E.2d 650; La Rocca v. Lane, 37 N.Y.2d 575, 578-579, 376 N.Y.S.2d 93, 338 N.E.2d 606; 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; Matter of Proskin v. County Ct., 30 N.Y.2d 15, 18, 330 N.Y.S.2d 44, 280 N.E.2d 875; Matter of Lee v. County Ct., 27 N.Y.2d 432, 436-437, 318 N.Y.S.2d 705, 267 N.E.2d 452). ³ Use of the writ is, and must be, restricted so as to prevent incessant interruption of pending judicial proceedings by those seeking collateral review of adverse determinations made during the course of those proceedings. Permitting liberal use of this extraordinary remedy so as to achieve, in effect, premature appellate review of issues properly reviewable in the regular appellate process would serve only to frustrate the speedy resolution of disputes and to undermine the statutory and constitutional schemes of ordinary appellate review (Matter of Dondi v. Jones, supra, 40 N.Y.2d at p. 21, 386 N.Y.S.2d 4, 351 N.E.2d 650 La Rocca v. Lane, supra, 37 N.Y.2d at p. 579, 376 N.Y.S.2d 93, 338 N.E.2d 606; Matter of State of New York v. King, supra, 36 N.Y.2d at pp. 63-64, 364 N.Y.S.2d 879, 324 N.E.2d 351).

While we have heretofore allowed use of this extraordinary remedy in respect to pending criminal proceedings, we have stressed it should be available only when a court exceeds its jurisdiction or authorized power in such a manner as to implicate the legality of the entire proceeding, as for example, the prosecution of a crime committed beyond the county's geographic jurisdiction (see, e.g., Matter of Steingut v. Gold, 42 N.Y.2d 311, 397 N.Y.S.2d 765, 366 N.E.2d 854, supra). This type of error is to be distinguished from errors of substantive law or procedure committed within a proceeding which is properly maintainable, even though concededly "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, if only because every act without jurisdiction or in excess of powers * * * of necessity involves an 'error of law' " (La Rocca v. Lane, supra, 37 N.Y.2d at p. 580, 376 N.Y.S.2d 93, 338 N.E.2d 606). Notwithstanding the difficulty in drawing subtle distinctions, we have said, and now reiterate with emphasis, that prohibition will not lie as a means of seeking collateral review of mere trial errors of substantive law or procedure, however egregious the error may be, and however cleverly the error may be characterized by counsel as an excess of jurisdiction or power (Matter of Steingut v. Gold, supra, 42 N.Y.2d at p. 315, 397 N.Y.S.2d 93, 338 N.E.2d 606; Matter of State of New York v. King, supra, 36 N.Y.2d at p. 62, 364 N.Y.S.2d 879, 324 N.E.2d 351).

Even in those rare circumstances where an arrogation of power would justify burdening the judicial process with collateral intervention and summary correction, the writ of prohibition nonetheless does not issue as of right, but only in the sound discretion of the court (Matter of Dondi v. Jones, supra, 40 N.Y.2d at p. 13, 386 N.Y.S.2d 4, 351 N.E.2d 650; La Rocca v. Lane, supra, 37 N.Y.2d at p. 579, 376 N.Y.S.2d 93, 338 N.E.2d 606; see also, Matter of Culver Contr. Corp. v. Humphrey, 268 N.Y. 26, 39, 196 N.E. 627). In exercising that discretion, a court must weigh a number of factors: the gravity of the harm caused by the act sought to be performed by the official; whether the harm can be adequately corrected on appeal or by recourse to ordinary proceedings at law or in equity; and whether prohibition would furnish "a more complete and efficacious remedy * * * even though other methods of redress are technically available" (Matter of Dondi v. Jones, supra, 40 N.Y.2d at p. 14, 386 N.Y.S.2d 4, 351 N.E.2d 650; La Rocca v. Lane, supra, 37 N.Y.2d at pp. 579-580, 376 N.Y.S.2d 93, 338 N.E.2d 606; Matter of State of New York v. King, supra, 36 N.Y.2d at p. 62, 364 N.Y.S.2d 879, 324 N.E.2d 351; Matter of Lee v. County Ct., supra, 27 N.Y.2d at p. 437, 318 N.Y.S.2d 705, 267 N.E.2d 452; Matter of Culver Contr. Corp. v. Humphrey, supra, 268 N.Y. at p. 40, 196 N.E. 627).

Generally, the ordeal of a criminal trial and the possibility of conviction, by themselves, are insufficiently harmful to warrant use of the writ (Matter of Dondi v. Jones, supra, 40 N.Y.2d at p. 14, 386 N.Y.S.2d 4, 351 N.E.2d 650). Moreover, the fact that the harm sought to be redressed implicates a constitutional right, does not necessarily command availability of the writ, for not all constitutional claims are cognizable by way of prohibition (see, e.g., Matter of Blake v. Hogan, 25 N.Y.2d 747, 303 N.Y.S.2d 505, 250 N.E.2d 568 ). Prohibition may lie, however, where the claim is substantial, implicates a fundamental constitutional right, and where the harm caused by the arrogation of power could not be adequately redressed through the ordinary channels of appeal. (La Rocca v. Lane, supra, 37 N.Y.2d at pp. 579-581, 376 N.Y.S.2d 93, 338 N.E.2d 606.) Thus, for example, when a defendant is about to be prosecuted in violation of his constitutional right against double jeopardy, we have concluded that the harm that he would suffer--prosecution for a crime for which he cannot constitutionally be tried--is so great and the ordinary appellate process so inadequate to redress that harm, that prohibition will lie to raise the claim (see, e.g., Matter of Kraemer v. County Ct., 6 N.Y.2d 363, 189 N.Y.S.2d 878, 160 N.E.2d 633). ⁴ Here, peti...