Vergari v. Kendall

• Decision Date: 05 February 1974
• Parties: Application of Carl A. VERGARI, District Attorney of Westchester County, Petitioner, for a judgment under Article 78 of the Civil Practice Law and Rules in the nature of prohibition v. Honorable Irving B. KENDALL, City Judge of Mount Vernon, Respondent.
• Court: New York Supreme Court

Page 383

352 N.Y.S.2d 383

76 Misc.2d 848

Application of Carl A. VERGARI, District Attorney of

Westchester County, Petitioner, for a judgment

under Article 78 of the Civil Practice

Law and Rules in the nature of

prohibition v. Honorable Irving B. KENDALL, City Judge of Mount Vernon, Respondent.

Supreme Court, Westchester County.

Feb. 5, 1974.

Carl A. Vergari, Dist. Atty. of Westchester County, White Plains by Janet Cunard, White Plains, of counsel.

Louis J. Lefkowitz, Atty. Gen. of N.Y., New York City, for respondent by Mortimer Sattler, New York City, of counsel.

Jerome J. Goldstein, Mount Vernon, for defendant, James Robinson.

Rothblatt, Rothblatt, Seijas & Peskin, New York City, for defendant, Nathaniel Thompson.

John J. Pappalardo, Eastchester, for defendant, Marco Pietrangelo.

David C. Gilberg, Mount Vernon, for amicus curiae, Mount Vernon Bar Assn.

GEORGE BEISHEIM, Jr., Justice.

This is an Article 78 proceeding brought by Carl A. Vergari, District Attorney of Westchester County, against Hon. Irving B. Kendall, City Judge of Mount Vernon, for a judgment in the nature of prohibition against Judge Kendall restraining him from directing, or proceeding with, the discovery as prescribed by him in three separate criminal actions pending in the City Court, Mount Vernon.

By decision and order dated September 10, 1973, in a criminal action involving a charge against the defendant, James Robinson, for the alleged commission of the offense of Harassment, the respondent granted a motion of the defendant 'to the extent that the District Attorney shall, within fifteen (15) days after the filing of this decision, furnish to the attorney for the defendant the names and addresses of persons whom the prosecuting attorney intends to call as witnesses at the trial of this harassment action, together with a copy of their relevant written statements, notes and memoranda if any'. (People v. Robinson, 75 Misc.2d 477, 347 N.Y.S.2d 860.) By decision and order dated October 25, 1973, the respondent granted reargument of the original motion and upon reargument adhered to the original decision of September 10, 1973. (75 Misc.2d 807, 349 N.Y.S.2d 259)

By decision and order dated October 30, 1973, in a criminal action involving a charge against the defendant, Nathaniel Thompson, for the alleged commission of the crime of Assault in the Third Degree, the respondent granted a motion of the defendant to furnish a bill of particulars, setting forth, among other things, 'the name and address of each witness to the crime the People presently intend to call, provided that the People have interviewed and procured a statement from said witness' and directed the discovery of, among other things, 'any and all police reports containing statements of witnesses'.

By decision and order dated November 14, 1973, in a criminal action involving a charge against the defendant, Marco Pietrangelo, for the alleged commission of the crimes of Leaving the Scene of an Accident Without Reporting and Driving While Intoxicated, the respondent granted a motion of the defendant for discovery of, among other things, 'all reports and documents prepared by the Police Department including the County Parkway police, in connection with this case'.

The petitioner alleges and it is not denied by the respondent nor by any of the attorneys for the respective defendants that the District Attorney has no right to appeal the orders of the Mount Vernon City Court Judge. CPL 450.20; Proskin v. County Court of Albany County, 37 A.D.2d 279, 324 N.Y.S.2d 426, affd. 30 N.Y.2d 15, 330 N.Y.S.2d 44, 280 N.E.2d 875.

This court believes that the present proceeding presents three legal questions to be determined, namely:

(1) Is the remedy of writ or order of prohibition available to the petitioner?

(2) If the first question is answered in the affirmative, should the respondent be prohibited from directing a discovery and inspection of 'any and all police reports containing statements of witnesses' in respect to the case against James Robinson; and from the discovery of 'any and all police reports containing statements of witnesses' in connection with the case against Nathaniel Thompson; and from the discovery of 'the contents of any report made by the police officer complaining and/or any other police officer present at the time the defendant was arrested' in connection with the case against Marco Pietrangelo?

(3) If the first question is answered in the affirmative, should the respondent be prohibited from directing the petitioner to furnish to the defendants in all three actions aforesaid, in advance of trial, the names and addresses of persons whom the District Attorney intends to call as witnesses?

(1) The court finds that the writ or order of prohibition is an appropriate remedy to the petitioner in the factual situation involved in the proceeding at bar. (Lee v. County Court of Erie County, 27 N.Y.2d 432, 318 N.Y.S.2d 705, 267 N.E.2d 452; Matter of Hogan v. Court of General Sessions of the County of New York, 296 N.Y. 1, 68 N.E.2d 849.)

The order of the City Court of Mount Vernon directing the District Attorney to reveal the names of witnesses in three cases on the calendar of the Mount Vernon City Court, and permitting the inspection of certain police reports containing statements of witnesses in said three cases, is non-appealable. If the People have not available to them the remedy of prohibition, in the event the City Judge should have erred, they have no redress of any kind. Law and justice do not countenance unchallenged perpetuation of substantial judicial error.

In the Lee case, supra, speaking for the majority of the Court of Appeals, Judge Scileppi prescribed conditions where an Article 78 proceeding in the nature of prohibition was appropriate, stating at pages 436 and 437, 318 N.Y.S.2d at page 708, 267 N.E.2d at page 454:

'. . . Although the use of the writ of prohibition has usually been limited to cases where a court acts without jurisdiction (see, e.g., Matter of Hogan v. Culkin, 18 N.Y.2d 330, 335--336, 274 N.Y.S.2d 881, 884--885, 221 N.E.2d 546, 549; People ex rel. Lemon v. Supreme Ct., 245 N.Y. 24, 156 N.E. 84; People ex rel. Safford v. Surrogate's Ct., 229 N.Y. 495, 128 N.E. 890), it is equally true that 'function of the writ * * * (is) not merely to restrain an unwarranted assumption of jurisdiction, but also to restrain an inferior court from exceeding its authorized powers in a proceeding over which it has jurisdiction.' (Matter of Hogan v. Court of Gen. Sessions, 296 N.Y. 1, 8, 68 N.E.2d 849, 852; see, also, People ex rel. Jerome v. Court of Gen. Sessions, 185 N.Y. 504, 78 N.E. 149; Quimbo Appo v. People, 20 N.Y. 531; CPLR 7802, subd. (a).) Additionally, in Matter of Culver Contr. Corp. v. Humphrey, 268 N.Y. 26, 39--40, 196 N.E. 627, 631--632 we said that the writ is an extraordinary remedy which 'does not issue where the grievance can be redressed by ordinary proceedings at law or in equity or merely to prevent error which may be readily corrected on appeal. (People ex rel. Mayor v. Nichols, 79 N.Y. 582; People ex rel. Hummel v. Trial Term, 184 N.Y. 30, 76 N.E. 732; People ex rel. Livingston v. Wyatt, 186 N.Y. 383, 79 N.E. 330, Supra; People ex rel. Childs v. Extraordinary Trial Term, 228 N.Y. 463, 127 N.E. 486.) It is not available ordinarily as a method of premature appeal. Nevertheless, where the lower court is exceeding its jurisdiction and the writ or order furnishes a more effective remedy, it may be availed of although the error might be corrected by appeal.' In the instant case, the order striking the plea was clearly nonappealable to the Appellate Appellate Division; thus, if prohibition were not available to Lee, he would be forced to submit to trial without the benefit of his plea and if convicted raise his claim of privilege on his appeal from the judgment of conviction.'

In the Hogan case, supra, the Court of Appeals reversed in part and affirmed in part an order of the Appellate Division, First Department, which dismissed as a matter of law and not in the exercise of discretion a petition of the District Attorney of New York County for an order under Article 78 of the Civil Practice Act prohibiting the Court of General Sessions of the County of New York from continuing to assume jurisdiction with respect to two proceedings on motions made by the intervener respondent to vacate two judgments of conviction rendered against him by the Court of General Sessions. In connection with the first conviction (i.e., the one in which the Court of Appeals reversed the Appellate Division and granted the order of prohibition), the court stated at page 8, 68 N.E.2d at page 852:

'. . . It was held below, and is insisted here, that prohibition cannot lie because the Court of General Sessions has general jurisdiction to vacate its own judgments in Coram nobis proceedings and A fortiori has jurisdiction to determine the sufficiency of the applications to sustain its jurisdiction to proceed further. These contentions overlook the function of the writ of prohibition, not merely to restrain an unwarranted assumption of jurisdiction, but also to restrain an inferior court from exceeding its authorized powers in a proceeding over which it has jurisdiction. That jurisdiction the court has exercised but in error has concluded with reference to the 1915 conviction that it may proceed further and upon the facts alleged, if they be established, vacate and set aside its judgment of conviction. This the court may not do without exceeding its jurisdiction, and the writ of prohibition may be used to restrain further proceedings in excess of jurisdiction. These rules were well stated in Matter of Culver Contrg. Corp. v. Humphrey, 268 N.Y. 26, 39, 196 N.E. 627, 631: 'The order of prohibition is provided for by the Civil Practice Act (§§ 1341--1355) (now Civ.Prac.Act, art. 78, §§ 1283--1306). These sections represent the condification of the common law...