In the Matter of P. David Soares,, Respondent,v.William A. Carter,, Appellant, Colin Donnaruma et al., Respondents.BriefN.Y.March 23, 2015Time requested: 10 minutes To be argued by: MarkS. Mishler ((://www.youtube.com/watch?v-CUDwOrgszYO. The arrest of Mr. Donnaruma takes place at approximately the 1 :57 mark of that video. The arrest of Mr. Morrisey is at approximately the 2:14 point. -5- On October 4, 2012 the District Attorney's office wrote a letter to Respondent-Appellant Judge Carter stating the People were "declining to prosecute" and, further stating, "Accordingly, we will not be participating in motion practice or future proceedings related to the instant charges." R 104. Respondent-Appellant Judge Carter denied the Occupy Respondents' motions to dismiss in November 2012 in a Decision which implied that the District Attorney was required to make a motion under CPL 170.30 if he wished to decline to prosecute. R 107-152. On December 4, 2012 the District Attorney's office wrote another letter to Respondent-Appellant Judge Carter stating "the People will not be going forward or calling any witnesses at any hearings or trials scheduled ... and are, accordingly, not ready for trial pursuant to CPL 30.30." R 105. The Occupy Respondents filed new motions to dismiss in January 20 13 arguing that the cases had to be dismissed because the CPL 30.30 speedy trial I readiness for trial periods had expired, and also arguing, pursuant to CPL 170.30, that there was an impediment to conviction in that Respondent-Appellant Judge Carter could not permissibly force Petitioner-Respondent District Attorney to prosecute these cases. R 154-180. -6- As set forth in the January pre-trial motions, by the time the January 2013 · pre-trial motions were filed, more than ninety days had elapsed from the date the People had initially clearly stated their decision not to prosecute these matters. (The CPL 30.30 time period applicable to Mr. Donnaruma's case is 90 days. The time period applicable to the other three Occupy Respondents' cases is 30 days.) R - 153- 180. On January 28, 2013 the District Attorney's office wrote a third letter to Judge Carter stating, with respect to the January 2013 motions to dismiss, "the People will not be filing a response and do not have any opposition to the Notice of Motion and supporting papers filed by counsel." R 106. Respondent-Appellant Judge Carter denied the January 2013 motions in a Decision on April12, 2013, stating that the motion to dismiss based on a legal impediment to prosecution had to be denied because said motion was not filed within forty-five days of the arraignment, and that the speedy trial I readiness for trial motion had to be denied based on his determination that the District Attorney's written statement that he was not ready for trial (because of the decision to decline to prosecute) was "a legal nullity." R 181-213. -7- Subsequently, Respondent-Appellant Judge Carter directed that pre-trial Huntley and Dunaway hearings be held in the underlying criminal proceedings on May 24, 2013, and May 31, 2013. The Occupy Respondents commenced a related Article 78 proceeding on May 20, 2103. R 37-213. Supreme Court denied the Occupy Respondents' request for a temporary stay of the criminal proceeding pending the return-date of the Article 78 proceeding. R 35-36. At that time, of course, no one knew what would happen if the pre-trial hearings occurred as scheduled, starting on May 24, 2013. The pre-trial suppression hearing for Mr. Donnaruma commenced on May 24, 2013. The People declined to present any witnesses and explicitly stated that they had no intention of calling any witnesses, that they were declining prosecution, and that they were intentionally not meeting their burden at the pre- trial suppression hearing. See, Transcript of May 24, 2013, hearing, R 229- 242. Respondent-Appellant Judge Carter stated his position that the People were ignoring an Order of the Court by not calling witnesses. R 235. He further stated his position that he could hold the District Attorney in contempt for not calling witnesses at the pre-trial hearing. R 237. Counsel for Mr. Donnaruma asked the Court to rule, in view of the fact that the People had failed to present any evidence at the pre-trial hearing: (1) that the People had failed to meet their burden, (2) that, -8- therefore, there had been no probable cause for the arrest of Mr. Donnaruma, and (3) to suppress any statements alleged to have been made by Mr. Donnaruma. R 239-240. Respondent-Appellant Judge Carter denied this motion. R 240. The conduct of the representatives of the District Attorney's office at the May 24, 2013, pre-trial hearing was respectful and professional, as is shown clearly in the transcript of the hearing. R 229-242. The present Article 78 proceeding was commenced by the District Attorney after the May 24, 2013, pre-trial hearing. R 243- 271. By consent, the underlying criminal proceedings were stayed pending determination of this Article 78 proceeding. R 272- 273. The Occupy Respondents' Article 78 proceeding was informally consolidated with the present case for purposes of briefing, oral argument and decision by Supreme Court. After briefing and oral argument, Supreme Court issued a Decision, Order and Judgment on July 11, 2013. Supreme Court determined that "a trial court cannot order the district attorney to call witnesses at a suppression hearing or enforce such order through contempt." R 9. Supreme Court, therefore, granted Petitioner-Respondent District Attorney's application for a writ of prohibition enjoining the enforcement of Respondent-Appellant Judge Carter's orders insofar -9- as they purported to require the District Attorney to call witnesses or put on proof at the suppression hearings. R 31. Respondent-Appellant Carter appealed to the Appellate Division, Third Department. R 4. The Third Department, on January 23, 2014, unanimously affirmed the lower court's decision. Matter of Soares v. Carter, 113 AD 3d 993 (2014). R 3c- 3i. Although it is not formally part of the record on appeal, the Occupy Respondents wish to inform the Court of two developments in this matter which occurred after the Third Department issued its decision. First, on February 28, 2014, the Occupy Respondents filed and served motions to dismiss in the interest of justice, pursuant to Criminal Procedure Law 170.40, as had been suggested and encouraged by the Appellate Division in their decision. At the time said motions were filed, Respondent-Appellant Judge Carter had not filed his motion seeking leave to appeal to this Court. Second, although the motions had, in fact, been filed, Respondent-Appellant Judge Carter purported to refuse to accept the motions for filing and had the original motion papers returned to the Occupy Respondents' counsel. -10- ARGUMENT POINT I FUNDAMENTAL PRINCIPLES OF SEPARATION OF POWERS AND DUE PROCESS PROHIBIT A TRIAL COURT FROM ORDERING, UNDER PENALTY OF CONTEMPT, A PROSECUTOR TO CALL WITNESSES OR PRESENT EVIDENCE AT A PRE-TRIAL HEARING ORAT A TRIAL It is black letter law that, as long as there is no violation of the defendant's statutory or constitutional rights, the District Attorney has unfettered discretion over how, and whether, to prosecute a case. See People v. DiFalco, 44 NY2d 482 (1978); Cantwell v. Ryan, 309 AD2d 1042 (3rd Dep't 2003); Soares v. Herrick, 88 AD 3d 148 (3rd Dep 't 2011 ). Thus the Appellate Division, Third Department, properly held that Respondent-Appellant Carter acted in excess of his jurisdiction when he ordered the District Attorney to call witnesses at a suppression hearing. In addition, it is highly prejudicial to the interests of the Occupy Respondents for the judge to attempt to threaten the prosecutor into going forward with cases after decisions have been made not to prosecute. The District Attorney herein carefully evaluated these four cases, including reviewing video of the incident, and determined, completely properly, that prosecuting these peaceful protestors was not something to which he wanted to devote his limited resources. Judge Carter, while not alleging any improper motives on the part of the District -11- Attorney, disagreed with this deci~ion, but it was not his decision to make. It is not hard to imagine a situation where a prosecutor might give in to pressure from a judge to change his mind and go ahead and prosecute such a case. This would be unfairly prejudicial to the defendants. POINT II RESPONDENT-APPELLANT JUDGE CARTER HAD OPTIONS AVAILABLE TO HIM TO DISPOSE OF THE UNDERLYING CRIMINAL MATTERS IN ACCORDANCE WITH THE CRIMINAL PROCEDURE LAW OTHER THAN ORDERING THE PEOPLE TO PRESENT EVIDENCE OR THREATENING THEM WITH CONTEMPT IF THEY FAILED TO DO SO Respondent-Appellant's Brief erroneously states that Respondent-Appellant Carter somehow had no ability to dismiss these cases because no motion had been made pursuant to CPL 170.40. By myopically focusing on only one possible mechanism for dismissal (a motion to dismiss in the interest of justice which, as shown by Judge Carter's refusal to accept the proposed adjournment in contemplation of dismissal, would clearly have been denied) Respondent- Appellant is ignoring several other ways by which these cases could have been dismissed. The Third Department Decision herein stated: " ... Unless the district attorney has engaged in egregious misconduct violative of the public interest, the limitation [on nolle prosequi] generally will not create difficulty in obtaining swift dismissal where a defendant also -12- desires dismissal, since various procedures are available for disposing of a pending criminal case. *** We need not belabor the point any further. Where a district attorney decides not to pursue a pending case and it is not one of those rare instances where the defendant objects, or even rarer occurrences where bad faith is implicated, then avenues exist under the CPL for dismissal. .. " Decision, at 5, 7, emphasis supplied. It is also noted that in People v. Reardon, 43 Misc.3d 1219(A) (Kinderhook Town Court, 2014), cited in Respondent-Appellant's Brief, that the court stated: "Although the DA implies that this Court's refusal to grant the instant motion [the DA's motion to dismiss based on declining to prosecute] creates a stalemate in contravention of the defendant's rights, the Court finds that defense counsel possesses ample remedies to protect his client's rights under both the Criminal Procedure Law and applicable case law ... " Reardon, supra, at 3, emphasis supplied. A. Respondent-Appellant Carter Could, Consistent with the CPL, have Dismissed the Underlying Criminal Matters Speedy Trial Grounds First, and most importantly, Respondent-Appellant should have dismissed the cases pursuant to CPL 30.30 because the speedy trial period had expired 2• It is submitted that the strict speedy trial statute is the answer to the conundrum of nolle prosequi. CPL 30.30 provides a mechanism whereby cases may be- and 2We are not arguing herein that Supreme Court should have granted mandamus and ordered Judge Carter to dismiss the cases as that is not pertinent to this appeal. However, CPL 30.30 is still highly relevant with respect to the questions of the options presented to Respondent-Appellant Carter. -13- often are- dismissed when the prosecution has decided not to go forward. (Of course, there are also cases where the prosecution opposes a speedy trial dismissal but that situation is not relevant herein.) There have been many cases where, after an evaluation of the facts and circumstances, the District Attorney decided not to prosecute. What often happens is that an offer of an adjournment in contemplation of dismissal is made and if this offer is refused, then the prosecution will simply allow the speedy trial period to expire (by, inter alia, not responding to defense motions) and the case will be dismissed. See, i.e., People v. Nolan, Hoosick Falls Village Court, 2009; People v. Harris, Albany City Court, 2003; People v. McAloney, Albany City Court, 2003. The only difference here is that the District Attorney forthrightly stated his declination to prosecute, rather than simply remaining mute. (And it was the judge, not the defendants, who refused the offers of straight adjournments in contemplation of dismissal.) The Occupy Respondents filed motions to dismiss pursuant to CPL 30.30 in January 2013 and Petitioner-Respondent stated in writing that he did not oppose these motions. The speedy trial period was 30 days for Occupy Respondents Cantine, Morrissey and Holmes, and 90 days for Colin Donnaruma. CPL 30.30(1). Even if, arguendo, the time period prior to the District Attorney's October 4, 2012 -14- letter to the court declining prosecution, or even the time period prior to the District Attorney's December 4, 2012letter stating unreadiness for trial, were excludable, by the time of the April12, 2013 Decision, it was quite clear that the speedy trial period had expired for all of these cases. Moreover, while Respondent-Appellant claims herein that this motion had to be denied because, inter alia, it was made after the 45 day motion period, it is clear that a CPL 30.30 motion may be made at any time up to the commencement of trial. People v. Lawrence, 64 NY2d 200 (1984). The only way Respondent-Appellant Carter could avoid dismissing the cases pursuant to CPL 30.30 was to somehow decide not to believe the District Attorney's statement of unreadiness for trial. This is what Judge Carter did, finding in the Decision that this statement was a "legal nullity" and stating " .. .in the absence of a CPL 170.30 motion ... the District Attorney's pronouncement of his subjective feelings, including verbalization of his prosecutorial discretion, is legally irrelevant ... " R 185. But of course there were CPL 170.30 motions in each of the four cases, made by the Occupy Respondents, and these motions, made pursuant to CPL -15- 170.30(1)(e) 3 and CPL 30.30, were unopposed. Because the Occupy Respondents set forth a prima facie case for speedy trial dismissals, and because the District Attorney did not oppose this with any facts showing dismissal was not warranted, the cases had to be dismissed. People v. Jackson, 103 AD2d 858 (3rd Dep't 1984) (when the defense raises a prima facie speedy trial claim, the prosecution has the burden to prove that dismissal is not warranted). Respondent-Appellant Carter's decision not to believe the District Attorney's statement ofunreadiness for trial, and to term it a "legal nullity," shows the same kind of interference with the prosecutorial function as his order to call witnesses at the suppression hearing. This is a violation of the fundamental doctrine of separation of powers. It is submitted that CPL 30.30 provides an appropriate mechanism for dismissal in cases where the district attorney has decided not to go forward with a prosecution. In fact, in People v. Douglass, 60 NY2d 194 (1983), relied upon by Respondent-Appellant Carter, the Court noted that the speedy trial period had not expired, stating, " .. .In each case, it was found that the prosecutor had failed to 3The Occupy Respondents also moved to dismiss pursuant to CPL 170.30(1)(f) arguing that the District Attorney's decision not to prosecute was an impediment to conviction. This is another way the cases could have been dismissed pursuant to CPL 170.30. However, Judge Carter decided not to entertain this motion because it had been filed more than 45 days from arraignment, even though this argument had been included in the Occupy Respondents' previous omnibus motions. -16- convert the complaint into an informatioh within a period of time established by the court. In none of the cases, however, had the statutory speedy trial period elapsed." Douglass, supra, at 197, emphasis supplied. CPL 30.30 was added to the Criminal Procedure Law in 1972, and it provides that if the time period therein expires, the court must dismiss the case. Contrary to Respondent-Appellant's apparent belief, the Criminal Procedure Law does not provide that the District Attorney must make a motion to dismiss. If he truly wanted to avoid the spectacle of scheduling these cases for trial, and summoning jurors, only to have the cases dismissed when no evidence was presented, all Respondent-Appellant Carter had to do was grant the Occupy Respondents' clearly meritorious CPL 170.30 and 30.30 motions. Instead, he went well out of his way - and in excess of his jurisdiction - to avoid dismissal and set the stage for all that followed. B. Respondent-Appellant Carter Could, Consistent with the CPL, have Dismissed the Underlying Criminal Matters Based on the Failure of the People to have Met their Burden at the Pre-trial Suppression Hearings or at Trial As noted in Petitioner-Respondent's Brief, another way Respondent- Appellant Carter could have avoided this situation would have been to grant the unopposed motion to suppress the evidence at the suppression hearings because -17- the People had not met their burden. Then he could have either dismissed the cases at that time, as often happens, or scheduled them for trial and dismissed them when no evidence was presented. This is not the most efficient way to handle the situation but it is another way it could have been dealt with pursuant to the Criminal Procedure Law. C. Respondent-Appellant Carter could, Consistent with the CPL, have Agreed to the Proposed Dispositions of the Underlying Criminal Matters with Adjournments in Contemplation of Dismissal Yet another way Respondent-Appellant could have dealt these cases pursuant to the Criminal Law would have been to accept the agreed-upon disposition of straight adjournments in contemplation of dismissal. It was certainly within his prerogative to refuse to accept this disposition, but he should not then claim that he had no options. POINT III NO RATIONAL OR OBJECTIVE BASIS EXISTS FOR RESPONDENT- APPELLANT JUDGE CARTER'S THREAT TO HOLD THE DISTRICT ATTORNEY IN CONTEMPT Supreme Court properly granted prohibition with regard to the ultra vires order by Respondent-Appellant to call witnesses at the suppression hearing. The transcript of that hearing shows that the Assistant District Attorneys (particularly -18- Chief Assistant David Rossi, who did all or nearly all the talking) were very reasonable and polite in the exercise of their discretion not to prosecute these cases. Having made that decision, Petitioner-Respondents steadfastly yet respectfully held firm in the face of the threats from Respondent-Appellant to hold them in contempt if no witnesses were called. It would have been improper and, as discussed above, prejudicial to the Occupy Respondents, had they capitulated to the ultra vires demand to prosecute. CONCLUSION For the reasons set forth above and in the brief submitted by Petitioner- Respondent Soares, the Occupy Respondents respectfully request that the Decision of the Appellate Division, Third Department be affirmed. Dated: October 24, 2014. Respectfully submitted, Kathy ley, Esq. Attorney for Respo dents- Respondents Kindlon Shanks and Associates 74 Chapel Street Albany, NY 12207 (518) 434-1493 -19- MarkS. Mishler, Esq. Attorney for Respondents- Respondents Law Office ofMark S. Mishler, P.C. 750 Broadway Albany, NY 12207 (518) 462-6753