Whitehurst v. Kavanagh

• Court: New York Supreme Court
• Writing for the Court: HAROLD J. HUGHES
• Citation: Whitehurst v. Kavanagh, 636 N.Y.S.2d 591, 167 Misc.2d 86 (N.Y. Sup. Ct. 1995)
• Decision Date: 04 December 1995
• Parties: Larry F. WHITEHURST, Petitioner, v. Michael KAVANAGH, as District Attorney of Ulster County, Respondent.

Page 591

636 N.Y.S.2d 591

167 Misc.2d 86

Larry F. WHITEHURST, Petitioner, v. Michael KAVANAGH, as District Attorney of Ulster County, Respondent.

Supreme Court, Albany County.

Dec. 4, 1995.

Capital Defender's Office, Albany (Mark Harris, of counsel), for Petitioner.

Michael Kavanagh, pro se.

Donald A. Williams, Jr., Kingston, for respondent.

Van De Water & Van De Water, Poughkeepsie (James E. Nelson, of counsel), for the Time Herald Record.

Ricken, Goldman, Sussman & Blythe, Kingston (Alan N. Sussman, of counsel), for the Daily Freeman and Another.

HAROLD J. HUGHES, Justice.

This is a CPLR article 78 proceeding seeking a judgment prohibiting the Ulster County District Attorney from prosecuting petitioner Whitehurst for first or second degree murder in the death of Rickel Knox, and for an order closing this proceeding to the public and the media. ¹ The respondent has moved for an order changing the venue of this proceeding from Albany County to Ulster County.

The essential facts are not in dispute for the purposes of this proceeding. Seven year old Rickel Knox was reported missing from her home in Kingston, New York, at approximately 4:30 p.m. on September 21, 1995. At approximately 6:30 p.m., Kingston police officers took petitioner Whitehurst to the Kingston Police Station and interrogated him concerning the child's disappearance. Petitioner was interrogated extensively over the course of the next few days. On September 24, 1995 a felony complaint charging petitioner with first-degree kidnapping was signed and filed. Between 10:30 p.m. on September 24 and 1:00 a.m. on September 25, Ulster County Assistant District Attorney John Prizzia interrogated petitioner and requested his assistance in locating the missing girl. At that point in time, the District Attorney did not know whether or not the victim was alive. Without assistance of counsel, petitioner negotiated a cooperation agreement with Assistant District Attorney Prizzia which provides:

"This contract is to set forth in writing the agreement between the Ulster County District Attorney's Office and the defendant, Larry Whitehurst. The agreement is as follows:

1. It is agreed and understood that Larry Whitehurst currently stands charged with Kidnapping in the First Degree.

2. It is further understood that Larry Whitehurst has indicated to the City of Kingston Police Department that he knows the location of Rickel Knox, and has indicated there is a possibility that she is still alive.

3. In exchange for information as to the location of Rickel Knox, is agreed as follows:

a. Larry Whitehurst must plead guilty to Kidnapping.

b. There will be no Murder charge.

c. If Rickel Knox is found alive, Larry Whitehurst will receive a minimum sentence of ten years.

d. If she is found dead, Larry Whitehurst will receive a minimum sentence of between ten and fifteen years, depending on the surrounding facts and circumstances.

e. In no event will Larry Whitehurst receive a minimum sentence of in excess of fifteen years if his cooperation leads to the discovery of Rickel Knox.

4. Should Rickel Knox or her remains not be found, this agreement will be void and will have no force or effect,

I have the right to go to trial and if so this contract is void".

On September 25, 1995, petitioner Whitehurst led Mr. Prizzia and police officers to the victim's body. Thereafter, District Attorney Kavanagh announced that he did not consider himself bound by the cooperation agreement, and that he would prosecute Mr. Whitehurst for first degree murder and seek the death penalty. This article 78 proceeding ensued.

The first issue to be decided is the respondent's application to change the venue of this proceeding to Ulster County for the convenience of witnesses. Albany County is an available venue as an article 78 proceeding of this nature can be commenced in any county within the judicial district where the material events occurred (CPLR 506[b]. To obtain a change of venue based upon the convenience of material non-party witnesses the moving party must submit an affidavit setting forth "the names, addresses and occupations of the prospective witnesses, a statement of what the party expects to prove by those witnesses, and the basis for the moving party's belief that the witnesses will testify as stated" (Stoyer v. Feeney, 165 A.D.2d 946, 561 N.Y.S.2d 109). The respondent has not made the required showing. Moreover, since there will be a summary determination of the article 78 proceeding there is no material witness to be inconvenienced.

The next issue is petitioner's request that this proceeding be closed to the public and the press. The press and public have a first amendment right of access to criminal trials (Richmond Newspapers v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973). In order to ban the press and public from a criminal trial the defendant must demonstrate that " 'there is a substantial probability that the defendant's right to a fair trial will be prejudiced by publicity that closure would prevent and, second, reasonable alternatives to closure cannot adequately protect the defendant's fair trial rights' " (Matter of Associated Press v. Bell, 70 N.Y.2d 32, 39, 517 N.Y.S.2d 444, 510 N.E.2d 313). New York recognizes a common law right of the press and public to attend civil and administrative proceedings that have historically been open to the public and there must be "compelling reasons" before that right will be abrogated (Matter of Herald Co. v. Weisenberg, 59 N.Y.2d 378, 384, 465 N.Y.S.2d 862, 452 N.E.2d 1190). Here, petitioner asserts that there has been extensive media coverage of this case and that his right to a fair trial will be prejudiced if details contained in this record are available to the public. Petitioner sought the same relief in a separate proceeding before Mr. Justice Bradley to disqualify Mr. Cavanagh as the prosecutor. Upon an almost identical record, Mr. Justice Bradley denied the closure motion. The Court agrees with that ruling. Petitioner has not made a compelling showing of a substantial probability that his right to a fair trial will be prejudiced by publicity arising out of this article 78 proceeding. To the contrary, almost all of the information that petitioner seeks to suppress has already been disclosed in the numerous newspaper articles, copies of which were submitted in support of this motion.

The next issue to be decided is whether the remedy of prohibition is available under the facts alleged in the petition.

It is well-settled that prohibition is an extraordinary remedy which may be invoked only when the body or officer--a prosecutor or court--acts or threatened to act without jurisdiction in a matter over which it has no power over the subject matter or exceeds its authorized powers in a proceeding over which it has jurisdiction (Matter of Holtzman v. Goldman, 71 N.Y.2d 564, 528 N.Y.S.2d 21, 523 N.E.2d 297; Matter of Rush v. Mordue, 68 N.Y.2d 348, 509 N.Y.S.2d 493, 502 N.E.2d 170). It may be invoked to prevent a prosecution or action without or in excess of the prosecutor's or the court's jurisdiction, which, if it proceeded, would implicate the legality of the entire proceeding, and only if there is a clear legal right to relief (CPLR 7803[2]; Matter of Rush v. Mordue, supra; Matter of Vega v. Bell, 47 N.Y.2d 543, 419 N.Y.S.2d 454, 393 N.E.2d 450).

Prohibition does not issue as a right, but only in the exercise of judicial discretion; in exercising that discretion, the court must weigh the following factors: (1) the gravity of harm caused by the act to be performed by the public official which the petition seeks to prohibit; (2) whether there are alternate remedies available to redress the problem, such as appellate review or ordinary proceedings or motions, e.g. a motion to dismiss the indictment; (3) whether...