Mary Seeley,
Petitioner,
against
Karen Kerr, AS A JUSTICE OF THE FIRST DISTRICT
COURT OF SUFFOLK COUNTY, THOMAS J. SPOTA, AS THE SUFFOLK
COUNTY DISTRICT ATTORNEY, Respondents.
|
1918/2014
Thomas E. Scott Esq.
Attorney for Petitioner
115 Broadhollow Rd Ste 250
Melville NY 11747
631-673-6670
Eric T. Schneiderman
Attorney General of New York State
By: Patricia M. Hingerton, Esq.
Attorney for Respondent Judge Kerr
300 Motor Parkway Ste 230
Hauppauge NY 11788
631-231-2424
Thomas J. Spota
Suffolk County District Attorney
By: Grazia DiVincenzo, Esq.
200 Center Drive
Riverhead NY 11901
631-852-2500
Andrew G. Tarantino Jr., J.
ORDERED that Petitioner's motion for a Writ of Prohibition, pursuant to NY Civ.
Pract. Laws & Rules [CPLR] Article 78, is denied.
Nature of Proceeding
Petitioner commenced the instant N.Y Civ. Prac. Laws and Rules [CPLR]
Art. § 78 proceeding against Judge Karen Kerr, Judge of the Suffolk County
District Court, and against Thomas Spota, Suffolk County District Attorney. Petitioner
seeks an Order Prohibiting the District Attorney from prosecuting an underlying criminal
case, and Prohibiting the Suffolk County District Court from hearing the case.
Issues Presented
1. Whether the Suffolk County District Court acted outside its jurisdiction or
exceeded its authorized powers and, therefore, should be prohibited from hearing the
underlying criminal action?
2. Whether the Suffolk County District Attorney is acting outside his
jurisdiction or exceeds his authorized powers and, therefore, should be prohibited from
prosecuting the underlying criminal action?
3. Whether a Defendant dissatisfied with the determination of the Suffolk
County District Court can appeal the decision of that court by way of an Article 78
proceeding?
Facts of the Case
In October 2010, Mary Seeley was on trial before a jury on charges of
operating a motor vehicle under the influence of alcohol or drugs. During the trial,
alleged prosecutorial misconduct by the prosecuting attorney led Seeley's defense counsel
to move before Judge Steven A. Lotto for a mistrial with prejudice. On October
21, 2010 Judge Lotto granted a mistrial without prejudice. On August 9, 2013,
nearly three years after Judge Lotto's decision, petitioner moved to re-argue Judge Lotto's
decision. Judge Lotto recused himself, and the reargument was determined and denied by
Judge Kerr on January 7, 2014. Judge Kerr ordered a re-trial. On January 28, 2014,
Seeley brought this proceeding by new counsel requesting a Writ of Prohibition alleging
that re-trial would violate state and federal protections against double jeopardy.The Law
A Writ of Prohibition is an extraordinary remedy which lies when a court
acts without jurisdiction or when a court exceeds its authorized powers in a proceeding
over which it has jurisdiction, see CPLR § 7801, 7803; see also,
Matter of Pirro v. Angiolillo, 89 NY2d 351, 675 N.E.2d 1189, 653 N.Y.S.2d 237
[1996]; Matter of Holtzman v. Goldman, 71 NY2d 564, 523 N.E.2d 297, 528
N.Y.S.2d 21 [1988]. To warrant the extraordinary remedy of prohibition, it is not enough
that the court makes a mere legal error; rather, the court's error must implicate the court's
very powers and thereby give the petitioner a clear legal right to relief to correct the
error. See, Matter of Holtzman, supra, at 569. Also, prohibition is
not granted as of right but only in the sound discretion of the reviewing court,
supra.
This courts ability to rule on a decision from a local criminal court is
governed pursuant to NY Crim. [*2]Proc. Laws [CPL]
§ 450.10, 450.60 [3] , which states:
An appeal from a judgment, sentence or order of a local criminal court
located outside of New York City must, except as otherwise provided in this subdivision,
be taken to the county court of the county in which such judgment, sentence or order was
entered.
If the appellate division of the second, third or fourth department has
established an appellate term of the supreme court for its department, it may direct that
appeals from such judgments, sentences and orders of such local criminal courts, or of
particular classifications of such local criminal courts, be taken to such appellate term of
the supreme court instead of to the county court; and in such case such an appeal must be
so taken.
In addition, the rules of the Court, 22 NYCRR § 730.1, state:
Direct that an appeal [...] taken to intermediate courts shall be taken to the
Appellate Term of the Supreme Court in and for the ninth and tenth judicial districts [
]
In addition to, but not in limitation, of the foregoing, such Appellate Term
shall have jurisdiction to hear and determine all appeals:
(I) from the District Court of Nassau County, the District Court of Suffolk County
and any other district court hereafter established in any county within the ninth judicial
district [ ]
Application of the above stated law and rules have been applied in case law, see People v. Bazile, 22 Misc
3d 1102(A), 880 N.Y.S.2d 225 (Table), 2008 NY Slip Op. 52582(U) [Crim. Ct
2008] [finding that the Appellate Term was that Local Criminal Court's proper appellate
court].
Finally, "an Article 78 proceeding is not an appeal' but rather a new
proceeding challenging a decision by an administrative body or officer". Meachem v.
Wing, 77 F. Supp. 2d 431, 442 [S.D.NY 1999].
Application
It is undisputed that as judicial and quasi-judicial officers pursuant to CPLR
§ 7803, Judge Kerr and District Attorney Spota are subject to Art. 78 proceedings.
See, Schumer v. Holtzman, 60 NY2d 46, 51 [1983] [finding that when a
prosecutor representing the public brings those accused to justice, he may be viewed as
performing a quasi-judicial function subject to an Article 78 proceeding]. The questions
are whether either party acted without jurisdiction or exceeded its authorized powers in a
proceeding over which it had jurisdiction? Frankly, nothing in the petition alleges that
either the Judge or District Attorney acted without jurisdiction or exceeded its authorized
powers to either try or prosecute petitioner. Judges Lotto and Kerr each was within their
jurisdiction to determine the initial motion and the reargument of that motion. District
Attorney Spota acting pursuant to an existing Court Order is within his jurisdiction to
prosecute the case at a new trial.
Decisional law provides some guidance as to when an officer exceeds its
authority. In Pirro v. Angiolillo, supra, the petitioner specifically questioned the
court's power to alter the incarceration portion of a split sentence once service had begun.
In that case the issue was not simply an appeal of the decision, but [*3]whether the court has such power to make such a decision
at all. Similarly, in Holtzman v. Goldman, supra, the District attorney
questioned whether the court had the power to enter a default in a criminal proceeding.
There, the Court of Appeals granted the appeal because the lower court did not have the
authority to dismiss on the merits when no evidence had been presented. Id.
These situations, or any remotely similar, did not exist in the present circumstances.
The application before this Court is more an appeal of the Trial Court
decision. The issue regarding whether double jeopardy would have attached to the
underlying dismissal was determined by the trial court's decision without
prejudice [see CPL §40.30(3)]. Seeley, simply, is seeking to impose a
determination of double jeopardy despite the Trial Court's decision. An Article 78
proceeding, however, is not an appeal.' See Meachem v. Wing, at 442. The
proper vehicle would have been a direct appeal to the Appellate Term. Consequently, the
petition must be denied and the Court declines to address the question of double
jeopardy.
This constitutes the decision of the Court.
Dated: July 3, 2014_______________________________________
A.J.S.C.