Whitehurst v. Kavanagh
| Decision Date | 04 April 1996 |
| Citation | 218 A.D.2d 366,640 N.Y.S.2d 345 |
| Parties | In the Matter of Larry F. WHITEHURST, Appellant, v. Michael KAVANAGH, as District Attorney of Ulster County, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Susan Salomon, Albany, for appellant.
Michael Kavanagh, District Attorney of Ulster County (Alan Lewis, of counsel), Kingston, for respondent.
Before CARDONA, P.J., and CREW, WHITE, YESAWICH and SPAIN, JJ.
Appeals (1) from that part of a judgment of the Supreme Court (Hughes, J.), entered December 13, 1995 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to prohibit respondent from prosecuting petitioner for the crimes of murder in the first degree and murder in the second degree, and (2) from an order of said court, entered January 17, 1996 in Albany County, which denied petitioner's motion for reconsideration.
Whitehurst v. Kavanagh, 167 Misc.2d 86, 636 N.Y.S.2d 591, affirmed.
During the afternoon of September 21, 1995, a seven-year-old girl (hereinafter the victim) was reported missing from the front yard of her home in the City of Kingston, Ulster County, and an intensive search for her ensued. Later that evening petitioner, who was not under arrest, was brought to the Kingston Police Department and questioned about the victim's disappearance. Although not in police custody, he was interrogated several other times during the next 48 hours. At approximately 11:00 P.M. on September 23, 1995 petitioner was taken into custody and charged with kidnapping in the first degree. He was questioned as to the whereabouts of the victim by, among others, an Assistant District Attorney of Ulster County from 10:00 P.M. on September 24, 1995 until approximately 1:00 A.M. on September 25, 1995, at which time petitioner and the Assistant District Attorney entered into a written "Cooperation Agreement".
This cooperation agreement provided, inter alia, that petitioner had indicated to the Kingston Police Department that he knew the location of the victim and that there was a possibility that she was still alive, and that in exchange for information as to the victim's whereabouts petitioner would plead guilty to kidnapping and no murder charges would be lodged against him. The agreement also set forth alternative minimum sentences which would be imposed depending upon whether the victim was found alive or dead, and further stated that if the victim was not found the agreement would be void. A handwritten addendum by petitioner indicated that he had the right to go to trial and, if he did so, the cooperation agreement would be void.
Later that day petitioner led authorities to the location of the victim, who was deceased. Thereafter, respondent announced that he did not consider himself bound by the cooperation agreement and that he intended to prosecute petitioner for murder in the first degree and seek the death penalty. Several days later, a felony complaint was filed charging petitioner with murder in the second degree. Subsequently, petitioner brought this proceeding to prohibit respondent from prosecuting him for murder in the first degree or second degree as a result of the death of the victim. In November 1995, a Grand Jury returned an indictment charging petitioner with, inter alia, murder in the first degree and second degree in connection with the victim's death.
As District Attorney, respondent is a constitutional officer and has the duty and responsibility to conduct all prosecutions of crimes and offenses cognizable by the courts of Ulster County, and has broad discretion in determining when and in what manner to perform his duties (see, N.Y. Const., art. XIII, § 13; County Law § 700[1]; see also, Matter of Holtzman v. Goldman, 71 N.Y.2d 564, 573, 528 N.Y.S.2d 21, 523 N.E.2d 297). Although prohibition is customarily used to control or inhibit courts or a judge threatening to act without jurisdiction, a prosecutor may be subject to this writ (see, Matter of Vega v. Bell, 47 N.Y.2d 543, 547, 419 N.Y.S.2d 454, 393 N.E.2d 450; Matter of Dondi v. Jones, 40 N.Y.2d 8, 13, 386 N.Y.S.2d 4, 351 N.E.2d 650). However, prohibition is an extraordinary remedy which lies only where there is a clear legal right, and then only when an officer threatens to act in a matter over which he or she has no power...
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Whitehurst v. Senkowski, 9:03-CV-0788 (NPM).
...however, ruled that the trial court had properly exercised its discretion in denying petitioners motion. Whitehurst v. Kavanagh, 218 A.D.2d 366, 640 N.Y.S.2d 345 (3rd Dept. 1996). New York's Court of Appeals denied Whitehurst leave to appeal that determination in its decision dated May 7, 1......
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Herkimer Cnty. Indus. Dev. Agency v. Vill. of Herkimer, 168
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