In the Matter of P. David Soares,, Respondent,v.William A. Carter,, Appellant, Colin Donnaruma et al., Respondents.BriefN.Y.March 23, 2015To Be Argued By: Christopher D. Horn Time Requested: Ten (10) Minutes ________________________________________________________________________ Court of Appeals STATE OF NEW YORK _______________ In the Matter of the Application of P. DAVID SOARES, District Attorney of Albany County, Petitioner-Respondent, For a Judgment in the Nature of Prohibition under Article 78 of the Civil Practice Law and Rules, -against- The Honorable WILLIAM A. CARTER, as City Court Judge, City of Albany, Respondent-Appellant, and COLIN DONNARUMA, DANIEL MORRISSEY, ERIC CANTINE, AND TIMOTHY HOLMES, Respondents-Respondents. ________________________________________________________________________ PETITIONER-RESPONDENT'S BRIEF ________________________________________________________________________ P. DAVID SOARES ALBANY COUNTY DISTRICT ATTORNEY ATTORNEY FOR PETITIONER-RESPONDENT ALBANY COUNTY JUDICIAL CENTER 6 LODGE STREET ALBANY, NEW YORK 12207 TEL. (518) 487-5460 CHRISTOPHER D. HORN Of Counsel VINCENT STARK Of Counsel _____________________________________________________________ i TABLE OF CONTENTS Page TABLE OF CASES AND AUTHORITIES ............................................................ iii JURISDICTIONAL STATEMENT .......................................................................... 1 QUESTIONS PRESENTED ...................................................................................... 3 PRELIMINARY STATEMENT ............................................................................... 4 STATEMENT OF FACTS ........................................................................................ 9 Supreme Court’s Decision, Order and Judgment .......................................... 17 The Appeal to the Third Department ............................................................. 20 ARGUMENT ........................................................................................................... 24 I. SUPREME COURT AND THE THIRD DEPARTMENT BOTH PROPERLY DETERMINED THAT RESPONDENT ACTED IN EXCESS OF HIS AUTHORITY WHEN HE ORDERED PETITIONER TO CALL WITNESSES AT THE PRETRIAL SUPPRESSION HEARINGS. ........................................ 24 A. Contempt is Not the Subject of the Writ of Prohibition ................................................................................. 24 B. Supreme Court Properly Found that a Writ of Prohibition Lies to Prohibit Respondent from Ordering Petitioner to Call Witnesses at the Suppression Hearings ........ 30 Abandonment and Waiver .............................................. 30 When the Writ of Prohibition Lies ................................. 30 A Clear Legal Right to Relief ......................................... 31 Respondent Carter’s Concessions Establish a Clear Legal Right to Relief ...................................................... 35 C. This Case Does Not Involve Nolle Prosequi ...................... 35 D. Prosecutorial Discretion in Misdemeanor and Violation Prosecutions .............................................................. 38 E. Petitioner Committed No Contemptuous Act ..................... 40 II. SUPREME COURT PROVIDENTLY EXERCISED ITS DISCRETION IN GRANTING THE WRIT OF PROHIBITION .................................................................................. 44 ii A. Unavailability of an Adequate Remedy on Appeal or at Law or in Equity .............................................................. 45 B. The Gravity of the Harm ...................................................... 47 C. The Remedial Effectiveness of Prohibition ......................... 49 D. What Next? .......................................................................... 50 CONCLUSION .............................................................................................. 53 iii TABLE OF CASES AND AUTHORITIES Page(s) State Cases Balter v. Regan, 63 NY2d 630 [1984] .....................................................................45 Brown v. Appelman, 241 AD2d 279 [2d Dep’t 1998] .............................................31 Hedeman v. Fairbanks, 286 NY 240 [1941] ............................................................. 1 In re Rotwein, 291 NY 116 [1943] ..........................................................................42 La Rocca v. Lane, 37 NY2d 575 [1975] ..................................................... 30, 31, 44 Maron v. Silver, 14 NY3d 230 [2010] .....................................................................32 Matter of Board of Supervisors of Montgomery County v. Aulisi, 62 AD2d 644 [3d Dep’t 1978] affd 46 NY2d 731 [1978] .................................................................32 Matter of Briggs v. Halloran, 12 AD3d 1016 [3d Dep’t 2004] ...............................30 Matter of Cantwell v. Ryan, 309 AD2d 1042 [3d Dep’t 2003] aff’d 3 NY3d 626 [2004] ......................................................................................................... 5, 10, 34 Matter of Cloke v. Pulver, 243 AD2d 185 [3d Dep’t 1998] ....................... 11, 30, 32 Matter of Czajka v. Koweek, 100 AD3d 1136 [3d Dep’t 2012] ..............................34 Matter of Department of Envtl. Protection of City of NY v. Department of Envtl. Conservation of State of NY, 70 NY2d 233 [1987] ................................................ 5 Matter of Dillon v. Kowtna, 270 AD2d 219 [2d Dep’t 2000] .................................32 Matter of Dondi v. Jones, 40 NY2d 8 [1976] ............................................. 20, 30, 44 Matter of Holtzman v. Goldman, 71 NY2d 564 [1988] .................................... 26, 31 Matter of Mulvaney v. Dubin, 55 NY2d 668 [1981] ...............................................31 iv Matter of Pirro v. Angiolillo, 89 NY2d 351 [1996] ................................................31 Matter of Premo v. Breslin, 89 NY2d 995 [1997] ...................................................32 Matter of Proskin v. County Court of Albany, 30 NY2d 15 [1972] ................. 30, 31 Matter of Rush v. Mordue, 68 NY2d 348 [1986].....................................................31 Matter of Soares v. Carter, 113 AD3d 993 [3d Dep’t 2014] .......................... passim Matter of Soares v. Carter, 41 Misc.3d 195 [Sup Ct Albany Co 2013] .......... passim Matter of Soares v. Herrick, 20 NY3d 139, 145 [2012] ..........................................44 Matter of Soares v. Herrick, 88 AD3d 148 [3d Dep’t 2011] aff’d 20 NY3d 139 [2012] ................................................................................................................6, 33 People v. Beckman, 38 Misc3d 878 [N.Y.Co.Ct., 2012] .........................................51 People v. Burr, 70 NY2d 354 [1987] ......................................................................... 2 People v. Carter, 91 NY2d 795 [1998] ...................................................................39 People v. DiFalco, 44 NY2d 482, 486 [1978] .............................................. 6, 10, 33 People v. Dowdell, 88 AD2d 239 [1st Dep’t 1982] .......................................... 37, 39 People v. Dowdell, 88 AD2d 239, 43 [1st Dep’t 1982] ............................................. 8 People v. Extale, 18 NY3d 690 [2012] ....................................................................36 People v. Goss, 87 NY2d 792, 797 [1996] ..............................................................39 People v. Oden, 36 NY2d 382 [1975]........................................................................ 2 People v. Urbaez, 10 NY3d 773 [2008] ..................................................................36 People v. Winchell, 64 NY2d 826 [1985] ................................................................25 People v. Yut Wai Tom, 53 NY2d 44 [1981] .......................................................7, 50 v People v. Zimmer, 51 NY2d 390 [1980] ..................................................................38 Federal Cases Berger v. United States, 295 US 78 [1935] ............................................................... 7 In re United States, 345 F3d 450 [7th Cir 2003] .......................................... 7, 20, 48 United States v. Cowan, 524 F2d 504 [1975] ......................................................5, 34 United States v. Greater Blouse, Skirt & Neckwear Contractors Association, 228 FSupp 483 [SDNY1964] ............................................................................... 34, 51 United States v. Marra, 228 FSupp2d 280 [WDNY 2002] .....................................52 Woodruff v. United States, 425 US 971 [1976] ......................................................... 5 Statutes County Law § 700[1] ...............................................................................................33 County Law § 750 ...................................................................................................... 6 CPL § 100.10 ...........................................................................................................36 CPL § 170.30 .................................................................................................... 10, 11 CPL § 30.30 ...................................................................................................... 11, 37 CPL § 450.20 ...........................................................................................................45 CPL § 530.20 ...........................................................................................................39 CPL § 710.30 .......................................................................................................9, 39 CPL § 710.60 .............................................................................................. 19, 21, 52 Executive Law § 63[2] .............................................................................................38 vi Judiciary Law § 750[3] ............................................................................................42 Penal Law § 205.30 .................................................................................................... 9 Penal Law § 240.20 .................................................................................................... 9 Penal Law § 255.17 .................................................................................................40 Constitutional Provisions N.Y. Const., art. III, § 1 ...........................................................................................32 N.Y. Const., art. IV, § 1 ...........................................................................................32 N.Y. Const., art. VI, § 1 ...........................................................................................32 N.Y. Const., art. VI, §3[a] ....................................................................................1, 25 N.Y. Const., art. XIII, § 13 ............................................................................... 33, 38 Other Authorities H. Cohen & A. Karger, Powers of the New York Court of Appeals, §108 [1952] .... 1 Preiser, Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, CPL § 450.90 [1994].......................................................................................................... 2 Roger A. Fairfax Jr., Prosecutorial Nullification, 52 BCL Rev 1243 [2011] .. 19, 40 1 JURISDICTIONAL STATEMENT This Court lacks jurisdiction over the subject matter of this appeal because the questions presented by Respondent-Appellant rely exclusively upon a version of the facts expressly rejected by the courts below (N.Y. Const., art. VI, §3[a]). Contrary to Respondent-Appellant’s assertion on this appeal, Supreme Court did not issue a writ of prohibition which prohibits a city court judge from exercising its contempt powers. Supreme Court issued the following Order and Judgment: ORDERED and ADJUDGED that the Hon. William A. Carter is prohibited and enjoined from enforcing his orders of November 26, 2012 and May 24, 2013 insofar as they require the District Attorney to call witnesses or put on proof at the suppression hearings in the criminal cases pending against the Occupy Petitioners (R 458). A question of fact exists if the question is dependent on evidence, though “not contradictory or disputed, from which different inferences may reasonably be drawn” (Hedeman v. Fairbanks, 286 NY 240, 249 [1941] construed in H. Cohen & A. Karger, Powers of the New York Court of Appeals, §108, pp. 449-450, 452 [1952]). A "mixed question" of law and fact typically arises where a legal conclusion depends upon affirmed findings of fact from which conflicting inferences may be drawn. With respect to such questions, "if there is support in the record for the inference drawn by the intermediate appellate court, the Court of Appeals must accept that inference as the basis for its own ruling on the law" (Preiser, Practice 2 Commentaries, McKinney's Cons Laws of NY, Book 11A, CPL § 450.90, at 742 [1994]; See People v. Oden, 36 NY2d 382, 384 [1975]; See also People v. Burr, 70 NY2d 354 [1987], certiorari denied 108 SCt 1294 [1988]). Respondent Carter concedes on this appeal that the “Appellate Division did not credit respondent’s version of events” (Respondent-Appellant’s Brief at p. 23). The evidence here is neither contradictory nor disputed and Respondent- Appellant is asking this Court to make different inferences from this evidence. This Court has thus been presented with a question of fact. Furthermore, Supreme Court’s findings of fact have been affirmed by Appellate Division, Third Department, and that court did not find any new facts in this special proceeding. To the extent that Respondent-Appellant contends that conflicting inferences could reasonably be drawn from these facts, this Court has been presented with a mixed question of law and fact. Accordingly, this Court lacks jurisdiction to hear this appeal. 3 QUESTIONS PRESENTED I. Whether a writ of prohibition lies to prohibit a sitting City Court Judge from ordering a District Attorney to call witnesses at a suppression hearing? Yes. II. Whether, if such a writ does lie, it constituted an abuse of discretion to grant it. No. 4 PRELIMINARY STATEMENT This action was brought by Petitioner-Respondent, the Albany County District Attorney, to vindicate the fundamental principle of Separation of Powers. What is at issue on appeal is not some narrow, obscure question of interpretation of the Criminal Procedure Law, but whether a judge of this state has the power to override the discretion of the elected chief law enforcement officer of a county and direct the prosecutions of defendants before him. These cases arise from the arrests of four so-called “Occupy Albany” protestors on June 13, 2012. The protestors were arraigned in Albany City Court before Respondent-Appellant, the Honorable Judge William A. Carter, on June 14, 2013. Since that time, the District Attorney’s Office has made numerous statements to the court indicating that it was declining to prosecute the protestors. In response, City Court ordered the District Attorney’s Office to continue prosecution of the protestors. At a suppression hearing on May 24, 2013, the District Attorney’s Office appeared, represented by the Chief Assistant District Attorney, and chose not to call any witnesses or otherwise sustain its burden. In response, City Court threatened to hold the Chief ADA in contempt of court for “not calling witnesses”. On its own motion, the court adjourned the proceedings to give the District Attorney’s Office “some time to research the issue”. After researching the issue, the District Attorney’s Office commenced this action. 5 The central issue of this case is whether Respondent can order an elected, constitutional officer to perform his job in a certain way. Respondent’s order in this case touches upon the core responsibilities of the district attorney—to exercise his discretion in determining what cases to prosecute and how to prosecute them. An interpretation of the CPL that would result in approving such an order is untenable. It has been recognized that District Attorneys enjoy the “exclusive obligation and authority to determine when and in what manner a suspect is to be prosecuted” (Matter of Cantwell v. Ryan, 309 AD2d 1042, 1042-1043 [3d Dep’t 2003] [internal citations omitted], aff’d 3 NY3d 626 [2004]). In exercising that authority District Attorneys enjoy “unfettered discretion” that is immune to judicial interference (Id.). Once prosecution of the case is pursued and pending, the district attorney remains “presumptively the best judge of whether a pending prosecution should be terminated” (United States v. Cowan, 524 F2d 504, 513 [1975], cert denied sub nom. Woodruff v. United States, 425 US 971 [1976]). Because City Court’s order intrudes upon the discretion and prerogatives of a coordinate branch of government, it is an ultra vires order, and cannot be enforced via contempt (Matter of Department of Envtl. Protection of City of NY v. Department of Envtl. Conservation of State of NY, 70 NY2d 233, 240 [1987]). It follows that City Court’s attempt to control the course of prosecution in this case by ordering the District Attorney to call a witness at a suppression hearing 6 under threat of contempt is beyond its power. The manner in which a District Attorney chooses to conduct the prosecution of a case and the appropriate allocation of staff and resources are matters left to his or her sole discretion (County Law § 750; People v. DiFalco, 44 NY2d 482, 486 [1978]; see also Matter of Soares v. Herrick, 88 AD3d 148 [3d Dep’t 2011] aff’d 20 NY3d 139 [2012]). The decision of what, if any, witnesses to call or not to call is therefore one for the District Attorney to make, not the court. It should be obvious that a judge cannot order an executive branch official jailed for performing his discretionary duties in the way he sees fit. If, as Respondent contends, a judge may order the executive branch to prosecute a case in a particular manner when the executive has steadfastly refused to do so, then there is no limit to the judicial power. Moreover, a ruling in favor of the Respondent in this case would lead to an absurd result. The District Attorney would be compelled, under the threat of contempt, to sustain his burden at a suppression hearing. The first step would be the order to call a witness, of course, but as Supreme Court recognized, no principled limitation exists that would stop City Court from further direction of the prosecutor (R 452-53). If the prosecutor failed to ask questions, City Court would presumably be at liberty to order the prosecutor to ask them. Should the prosecutor fail to ask the questions the judge would think appropriate, he could order the 7 prosecutor to ask particular questions, or ask those questions himself (R 453). Charting this course, step by step, the court would find itself treading down the primrose path to becoming the prosecutor. This plays hob with traditional notions of justice and fair play, and presents powerful due process concerns (See People v. Yut Wai Tom, 53 NY2d 44, 58 [1981] [“[T]he risks of unfairness are so many and potentially so great that the Judge should rarely, if ever, indulge in an extended questioning of the witnesses”]; see also In re United States, 345 F3d 450, 454 [7th Cir 2003]). Respondent Carter contends that his contempt power is the one “check against silent and potentially abusive abandonment of prosecutions” (Respondent Carter’s Brief at 9). But under Respondent’s view of the Criminal Procedure Law, nothing can constrain City Court from pressing forward with ostentatious and potentially abusive prosecutions that the People have decided do not warrant prosecution. City Court’s insistence that the District Attorney’s office continue the prosecution of peaceful protestors at all costs misunderstands the role of a prosecutor. The prosecutor’s role cannot be summarized as merely ensuring convictions, as Respondent Carter imagines (See Berger v. United States, 295 US 78, 88 [1935]). Rather, the District Attorney “represents the People of the State, and is presumed to act impartially, solely in the interests of justice. . . his primary duty is to see that justice is done and the rights of all—defendants included—are 8 safeguarded” (People v. Dowdell, 88 AD2d 239, 243 [1st Dep’t 1982]). It is the discretion afforded to district attorneys that gives life to that hortatory command; only the freedom to choose to continue as well as discontinue a prosecution assures that the People’s elected representative is free to “see that justice is done.” 9 STATEMENT OF FACTS On June 13, 2012 in the City of Albany, Colin Donnaruma, Daniel Morrissey, Eric Cantine and Timothy Holmes (collectively “the Occupy Respondents”) were arrested in connection with the protest activities of Occupy Albany. All four of the Occupy Respondents were charged with Disorderly Conduct, in violation of Penal Law § 240.20, a non-criminal violation. Colin Donnaruma was also charged with Resisting Arrest, in violation of Penal Law § 205.30, a Class A Misdemeanor, arising out of the same incident (R 10). The Occupy Respondents were arraigned in Albany City Court on June 14, 2012 before Judge Carter (R 10). At each arraignment, the Albany County District Attorney's Office (ACDA) appeared for the People, made sure all the paperwork was in order, filed a superseding information, made a bail recommendation, served a CPL § 710.30 notice and declared readiness for trial. The cases were adjourned until June 19, 2012, at which time a briefing schedule for pretrial motions was set. At an August 21, 2012 appearance, the District Attorney's Office proposed to adjourn all of the cases in contemplation of dismissal for six months on the condition that the defendants remain free from arrests during that time (R10). Judge Carter agreed, so long as Colin Donnaruma performed 80 hours of community service and the other three performed 40 hours of such service (R 275). 10 The Occupy Respondents rejected plea agreements that were conditioned upon community service at a September 7, 2012 court appearance (R 10). On September 21, 2012, the Occupy Respondents filed identical motions to dismiss. Among other things, the motions sought an order pursuant to People v. Di Falco, 44 NY2d 482 [1978] and Cantwell v. Ryan, 309 AD2d 1042 [3d Dept. 2003], aff'd 3 NY3d 626 [2004], “dismissing the accusatory instruments because the District Attorney has notified the Court that his office is declining to prosecute” (R 10, 55, 67, 79, 91). On October 4, 2012, after further investigation and deliberation, Petitioner filed a letter with the court indicating that the ACDA was opting not to file any response to the Occupy Respondents’ motions and that the ACDA was declining to prosecute the charges (R 104). Judge Carter denied the Occupy Respondents’ motions to dismiss in a Decision and Order dated November 26, 2012 in which he stated that the District Attorney was required to make a motion under CPL § 170.30 if he wished to decline to prosecute (R 110-111). At page 5 of Respondent Carter’s November 26, 2012 Decision and Order, he states: Lastly, given the District Attorney’s October 4, 2012 letter stating that his office declines to prosecute these charges and “will not be participating in motion practice or future proceedings,” this Court is constrained to note that, should the Office of the District Attorney fail to appear at the next scheduled court date, this Court may 11 be forced to utilize one of the few available options left to it under these circumstances, including but not limited to, its contempt powers (see Cloke v. Pulver, 243 AD2d 185, 187-190 [3 Dep’t 1983] [noting three options for a trial judge where a District Attorney refuses to prosecute a pending matter]) [emphasis added] (R 112). On December 4, 2012 Petitioner’s office filed another letter with the court 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. The People will, of course, be present at any and all scheduled court dates” (R 105). The Occupy Respondents filed new motions in January 2013, arguing that the cases must be dismissed because the speedy trial / readiness for trial period had expired, and also arguing, pursuant to CPL § 170.30, that there was an impediment to conviction in that Respondent Carter could not permissibly force the Petitioner to prosecute these cases (R 154). On January 28, 2013 the Petitioner’s office filed a third letter with the court stating, with respect to the Occupy Respondents’ January 2013 motions, “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 Carter denied the January 2013 motions in a Decision and Order dated April 12, 2013, in which he held that the motion to dismiss based on a legal impediment to prosecution must be denied because said motion was not filed 12 within forty-five days of the arraignment, and denying the speedy trial motion because the Court determined that the Petitioner’s filed statement indicating that he was not ready for trial was “a legal nullity,” stating: The entire basis of the defendant’s CPL 30.30 post readiness motion is premised upon what this Court previously determined to be a legal nullity: the Albany County District Attorney’s hearsay statement to defense counsel and two letters filed with the Court, that were not affirmed, announcing his decision not to prosecute this case. . . . [I]n 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, emphasis added). Subsequently, Respondent Carter directed that pre-trial Huntley, Mapp and Dunaway hearings be held in the Occupy Respondents’ cases on May 24, 2013 (Colin Donnaruma and Timothy Holmes) and May 31, 2013 (Daniel Morrissey and Eric Cantine). Prior to these hearings commencing, the Occupy Respondents commenced a proceeding pursuant to CPLR Article 78 in the nature of mandamus and prohibition to compel Respondent Carter to dismiss the cases against the Occupy Respondents and to prohibit Respondent Carter from exceeding his authority by compelling the ACDA to prosecute the defendants’ cases (R 34-53). The Petitioner took no position with regard to the Occupy Respondents’ petition. The Occupy Respondents also sought a preliminary injunction staying the proceedings 13 in Albany City Court but that request was denied by Supreme Court (Teresi, J.) (R 279). Accordingly, the People appeared in court on May 24, 2013, as they had always indicated they would (R 105). This complied with Respondent Carter’s prior indication that “should the Office of the District Attorney fail to appear at the next court date” the court “may be forced to utilize . . . its contempt powers” (R 112). On the date of the scheduled hearing, the People appeared and when they were told to call their first witness, the People indicated, as they had before, that they were not calling any witnesses. The following colloquy then took place between Respondent Carter and the People: THE COURT: Call your first witness. MR. ROSSI: Your Honor, the People are not calling any witnesses in this proceeding. And we are not opposing the defense motions. THE COURT: I understand. Would you please place on the record your reasons for not calling any witnesses in this proceeding. MR. ROSSI: Your Honor, the District Attorney has made a decision to decline prosecution in this matter. We haven’t opposed any of the defense motions. We don’t plan to oppose their motions. And to the extent that we are required to be in court, and appear on the matter, we’ll do that, but we’ll not be going forward and meeting our burden. 14 THE COURT: Well, I do understand what you’re saying with regard to your burden. You do have the burden of production. But, I actually need to make sure that you understand your duties and obligations with regard to this hearing. And simply appearing does not fulfill your obligations. * * * (R 231-232). * * * THE COURT: Your (sic) obligated to participate. MR. ROSSI: I am here to participate your Honor. THE COURT: Call your first witness. MR. ROSSI: The People have no witnesses, your Honor (R 233). * * * THE COURT: * * * I need to understand why you are not doing that. * * * MR. ROSSI: * * * The point is, we are declining prosecution by not meeting our burden. We won’t be calling any witnesses. It is our position that it is in the sole discretion of the District Attorney whether or not he proceeds in this matter and he has made a decision that he is not going to proceed in this matter. He was not going to be calling any witnesses in this matter. THE COURT: Based upon the things that you are saying, it’s not that [you are] not going to call any witnesses * * * You are refusing to call witnesses, that is not the same thing. MR. ROSSI: Your Honor, I am certainly not refusing any lawful order of the Court, if that is what you are asking me. But we are exercising our discretion, by not calling any witnesses for this proceeding, not because 15 they are not available, um, because we are choosing not to call any witnesses and we are choosing not to present any proof and we are choosing not to meet our burden (R 233-234, emphasis added). And later, MR. ROSSI: Your Honor, I don’t believe I am ignoring any order of the Court. THE COURT: You certainly are. You are not calling witnesses. (R 235, emphasis added). MR. ROSSI: * * * I don’t believe we are defying a lawful order of the Court. We are here. We’ll be present in court. But, I don’t believe it is the Court’s - - up to the Court to decide what proof the People will present and what proof the People won’t present or what witnesses they will call or what witnesses they won’t call. THE COURT: I would agree with you. And that is not what I am doing. You are refusing to go forward. If you told me that you didn’t have a particular witness, if you needed an adjournment, a continuance, anything of that nature, I would be more than happy to accommodate you, but by your willfully refusing to participate, that’s not something that the Court can allow to happen today or in the future. I will not allow that precedent to be set. MR. ROSSI: I understand the Court’s position, your Honor. Our position remains the same. THE COURT: If that is your position, are you also aware that you are limiting my options? MR. ROSSI: I don’t believe I am your Honor. But, I guess, that’s your decision to make. THE COURT: Well, you may not believe it, but if I gave you some time to research the issue, you may find that I 16 am limited in what I can do. However, one of the things that I could do is to hold you in contempt. I have no desire to do that. I would really like you to spend some time going over my decision, going over the law that’s in it, and we can revisit this at another date (R 236-237). and finally, MR. ROSSI: I understand, your Honor. Our position is that it would be very simple for the Court to grant the defense motion. And then this case would end. We haven’t met our burden. We haven’t opposed any of the motions being made. It seems quite simple, to us, that the motions should be granted. There is no evidence for the People to proceed with. And the case should be dismissed or trial should be scheduled. And we’ll proceed from there. But we haven’t met our burden at the suppression hearing and we don’t plan to (R 238). It is clear from the above excerpts and from the remainder of the 13 page transcript of the proceedings that Respondent Carter sought to order the People to call witnesses at the hearing when there is no statutory or constitutional basis for him to do so. In so doing, he exceeded his authority. Respondent Carter exacerbated the matter when he threatened to enforce his ultra vires order by holding the prosecutor in contempt. The hearings were all adjourned for a week, the first two to be held on May 31, 2013 at 10AM and 2PM and the second two to be held on June 7, 2013. After spending some time going over Respondent Carter’s Decision and Order, and going over the law cited within it, as well as the transcript of the suppression hearing, the Petitioner commenced the instant proceeding pursuant to 17 Article 78 of the CPLR in the nature of prohibition by Order to Show Cause dated May 30, 2013. The petition sought to prohibit Respondent Carter from enforcing his Orders of November 26, 2012 and May 24, 2013, to the extent that said Orders ordered Petitioner to call witnesses at the suppression hearings under threat of contempt (R 243-262). Upon the consent of all parties, the proceedings in Albany City Court were stayed pending the determination of Petitioner’s application. Supreme Court (Platkin, J.) consolidated the proceedings in this matter for purposes of briefing and argument on the two petitions but did not formally join the actions (R 15). Supreme Court set the following briefing schedule: any opposition to the petition by Respondent Carter was to be filed and served by noon on June 14, 2013, and thereafter Petitioner and the Occupy Respondents could serve and file any reply papers by noon on June 21, 2013. Oral argument was had on both petitions on June 28, 2013 (R 340-420). Supreme Court’s Decision, Order and Judgment. In a thorough written decision dated July 11, 2013, Supreme Court recognized the correct legal standard to be applied here. The extraordinary remedy of prohibition may be obtained only when a clear legal right of a petitioner is threatened by a body or officer acting in a judicial or quasi-judicial capacity without jurisdiction in a matter over which it has no power over the subject matter or where it exceeds its authorized powers in a proceeding over which it has 18 jurisdiction. Even where prohibition is an available remedy, however, it is not mandatory, but may issue in the sound discretion of the court. In exercising its discretion, Supreme Court considered at length the gravity of the harm caused by Respondent Carter’s excess of power, the availability or unavailability of an adequate remedy on appeal and the remedial effectiveness of prohibition where no such remedy exists (R 441-442). Supreme Court rightly observed that the concept of the Separation of Powers is the bedrock of our system of government and each of the three departments should be free from interference in the discharge of its duties by the other two. In discharging the executive function of law enforcement, a District Attorney possesses broad authority and discretion over all phases of a prosecution, including the manner of prosecution and the allocation and use of prosecutorial staff and personnel (R 451). The broad and unqualified statutory authority of a District Attorney “to conduct” a prosecution, Supreme Court reasoned, plainly carries with it the power to make decisions regarding the witnesses to be called on behalf of the People, the testimony to be elicited, the other proof offered into evidence and the arguments to be made. And a District Attorney necessarily possesses concomitant authority to decline to call particular witnesses, put on certain proof or advance particular arguments. Here, Supreme Court observed, the District Attorney has tested the 19 bounds of this authority by declining to offer any witnesses, evidence or arguments in support of the pending charges—conduct that has been described by some legal commentators as a form of “prosecutorial nullification” (see generally Roger A. Fairfax Jr., Prosecutorial Nullification, 52 BCL Rev 1243 [2011]) (R 451-452). Supreme Court observed that Respondent Carter had not identified any provision of law that: limits or regulates the manner in which a District Attorney exercises his or her statutory duty “to conduct” a criminal prosecution, mandates any particular manner or degree of prosecutorial “participation”, or obliges a prosecutor to call witnesses at a suppression hearing (see CPL § 710.60). There simply are no judicially enforceable standards governing the exercise of these highly, if not wholly, discretionary functions. Accordingly, Supreme Court concluded, they are matters committed to the judgment of responsible executive branch officials, not the courts (R 452). In applying the law to the facts of this case, Supreme Court concluded that Respondent Carter’s Order that the ACDA call witnesses at the suppression hearing was ultra vires in that it violated Separation of Powers principles in a fashion that would wreak great havoc upon our system of justice. Quoting In re United States, the Court observed that vesting “the plenary prosecutorial power in the executive branch safeguards liberty, for, in conjunction with the plenary legislative power of [the legislature], it assures that no one can be convicted of a 20 crime without the concurrence of all three branches. . . . When a judge assumes the power to prosecute, the number shrinks to two” (In re United States, 345 F3d 450, 454 [7th Cir 2003]) (R 455-456). Accordingly, Supreme Court denied and dismissed the Occupy Respondents’ petition in its entirety but granted Petitioner’s application as follows: Based on the foregoing, the Court determines that the District Attorney has demonstrated his entitlement to a writ of prohibition enjoining the enforcement of Judge Carter's orders of November 26, 2012 and May 24, 2013 insofar as they require the District Attorney to call witnesses or put on proof at the suppression hearings. The Court further determines that issuance of the writ represents an appropriate exercise of this Court's remedial discretion under all of the facts and circumstances of this proceeding (see Dondi, 40 N.Y.2d at 13, 386 N.Y.S.2d 4, 351 N.E.2d 650) (R 457). * * * ORDERED and ADJUDGED that the Hon. William A. Carter is prohibited and enjoined from enforcing his orders of November 26, 2012 and May 24, 2013 insofar as they require the District Attorney to call witnesses or put on proof at the suppression hearings in the criminal cases pending against the Occupy Petitioners (R 458). The Appeal to the Third Department. Respondent Carter, thereafter, appealed to the Appellate Division, Third Department (R 4). On that appeal, Respondent Carter’s primary contention was that “Supreme Court based its decision upon an incorrect factual determination that he had ordered petitioner to call witnesses at the suppression hearing under 21 threat of contempt” (Matter of Soares v. Carter, 113 AD3d 993, 994 [3d Dep’t 2014] [emphasis added]). As Respondent Carter candidly admits, the “Appellate Division did not credit [his] version of events” (Respondent-Appellant’s Brief at p. 23). The Third Department held that the record supports Supreme Court's determination. That court noted that at the suppression hearing, Respondent stated that Petitioner was “ignoring his prior order by not calling witnesses,” he characterized Petitioner's decision not to call witnesses as “willfully refusing to participate,” and added that, if Petitioner maintained his position, one of the options available was to hold him in contempt (Soares v. Carter, 113 AD3d at 994- 995). The Third Department concluded that it was appropriate for Supreme Court to “ascribe the clear meaning to the words used during the colloquy; and those words suggest that petitioner would be held in contempt if he did not call witnesses at the adjourned suppression hearings” (Soares v. Carter, 113 AD3d at 995). As the Petitioner had always contended, and Supreme Court and the Third Department agreed, the CPL does not mandate that a District Attorney call witnesses at a suppression hearing (Id.; see CPL § 710.60). The court noted with approval that Supreme Court had succinctly set forth some of the potential serious problems that would arise if a trial court required a District Attorney to do so (Matter of Soares v. Carter, 41 Misc.3d 195, 211 [Sup Ct Albany Co 2013]). 22 Since requiring a prosecutor to call witnesses to avoid being held in contempt “would exceed the trial court's authority and impact the entire proceeding,” the Third Department was unpersuaded that Supreme Court's narrowly tailored order of prohibition constituted an abuse of its discretion (Soares v. Carter, 113 AD3d at 995-996). Respondent Carter’s second argument on direct appeal was that Supreme Court erred in issuing a judgment prohibiting him from exercising his contempt powers. The plain language of the judgment refuted this assertion and, accordingly, the Third Department disagreed, holding that: Supreme Court's judgment is not so sweeping. The court merely prohibited respondent from “requir[ing] [petitioner] to call witnesses or put on proof at the suppression hearings in the criminal cases pending against [the defendants]” * * *. This judgment does not, as theorized by respondent, lead to the conclusion that respondent has been stripped of his power to require petitioner to comply with the CPL. Supreme Court's judgment does not directly diminish respondent's contempt power nor does it purport to circumscribe whatever power respondent may have to require compliance with the governing statute. However, since the CPL does not require petitioner to call witnesses or put on proof at the suppression hearing, and given a district attorney's broad discretion—implicating separation of powers—in determining the manner to proceed in a criminal case * * *, respondent cannot mandate such action under threat of contempt. It is a simple, narrow, potentially ultra vires action that is being prohibited by Supreme Court's judgment. (Soares v. Carter, 113 AD3d at 995-996). 23 Finally, Respondent Carter contended that Supreme Court abused its discretion in granting the writ of prohibition by “falsely characterizing respondent as ‘ordering’ petitioner to call witnesses” (Respondent-Appellant’s Appellate Division Brief at p. 28). The Third Department rejected this argument and concluded, as a factual matter, that Respondent Carter had indeed ordered Petitioner to call witnesses at the hearing. Accordingly, in a decision dated January 23, 2014, the court unanimously affirmed Supreme Court’s decision (R 3c- 3i). Subsequently, Respondent Carter made a motion for leave to appeal to this court. Petitioner opposed the motion, contending that this court lacked subject matter jurisdiction over the questions of fact and mixed questions of law and fact which Respondent Carter raised on his motion. The motion was granted on June 10, 2014 (R 3a-3b]. This appeal ensues. 24 POINT I SUPREME COURT AND THE THIRD DEPARTMENT BOTH PROPERLY DETERMINED THAT RESPONDENT ACTED IN EXCESS OF HIS AUTHORITY WHEN HE ORDERED PETITIONER TO CALL WITNESSES AT THE PRETRIAL SUPPRESSION HEARINGS. Respondent Carter contends that Supreme Court erred when it found that a writ of prohibition lies to prohibit a sitting city court judge from exercising his contempt power. Petitioner respectfully submits that no such finding was made by either Supreme Court or the Appellate Division. A. Contempt is Not the Subject of the Writ of Prohibition. Contrary to Respondent’s contention, contempt is not the subject of Supreme Court’s granting of a writ of prohibition in this case. Contempt is merely the cudgel Respondent had threatened to use to enforce his ultra vires order that Petitioner call witnesses at the suppression hearings. Once prohibited, an unlawful order cannot be enforced by any means, let alone by means of contempt. Supreme Court found as a matter of fact that Respondent ordered Petitioner to call witnesses at a suppression hearing, contrary to Petitioner’s discretionary determination not to do so. On appeal to the Third Department, Respondent contended that “Supreme Court based its decision upon an incorrect factual determination that he had ordered petitioner to call witnesses at the suppression hearing under threat of contempt” (Soares v. Carter, 113 AD3d at 994). But the 25 Third Department affirmed Supreme Court’s finding of fact, and there is support for it in the record. Where there exists support in the record for the affirmed findings of fact, this Court is bound thereby (People v. Winchell, 64 NY2d 826, 827 [1985]; N.Y. Const., art. VI, §3[a]). Supreme Court’s discussion of contempt occurred in the context of prohibiting Respondent from enforcing an ultra vires order that he was threatening to enforce via contempt. Contempt was merely the stated means of enforcement. The ultra vires order to call witnesses against the prosecutor’s discretionary judgment was what Petitioner sought to prohibit and what Supreme Court ultimately did prohibit. This is clear from the decretal paragraph of Supreme Court’s Judgment: ORDERED and ADJUDGED that the Hon. William A. Carter is prohibited and enjoined from enforcing his orders of November 26, 2012 and May 24, 2013 insofar as they require the District Attorney to call witnesses or put on proof at the suppression hearings in the criminal cases pending against the Occupy Petitioners (R 458). There is no reference in Supreme Court’s Order and Judgment to Respondent’s contempt powers. It goes without saying, of course, that an ultra vires order cannot be enforced by any means, contempt or otherwise. The Third Department concisely addressed Respondent’s contention that the writ of prohibition stripped him of his contempt powers: 26 Next, respondent argues that Supreme Court erred in issuing a judgment prohibiting him from exercising contempt powers. Supreme Court's judgment is not so sweeping. The court merely prohibited respondent from “requir[ing] [petitioner] to call witnesses or put on proof at the suppression hearings in the criminal cases pending against [the defendants]” (41 Misc.3d at 215, 969 N.Y.S.2d 755). This judgment does not, as theorized by respondent, lead to the conclusion that respondent has been stripped of his power to require petitioner to comply with the CPL. Supreme Court's judgment does not directly diminish respondent's contempt power nor does it purport to circumscribe whatever power respondent may have to require compliance with the governing statute. However, since the CPL does not require petitioner to call witnesses or put on proof at the suppression hearing, and given a district attorney's broad discretion—implicating separation of powers—in determining the manner to proceed in a criminal case ( see Matter of Holtzman v. Goldman, 71 N.Y.2d at 573– 574, 528 N.Y.S.2d 21, 523 N.E.2d 297), respondent cannot mandate such action under threat of contempt. It is a simple, narrow, potentially ultra vires action that is being prohibited by Supreme Court's judgment. Respondent’s reliance upon the language “potentially ultra vires action” as evidence that the Third Department was referring to the potential use of his contempt powers is misguided. “It” refers to the order to call witnesses. The phrase “potentially ultra vires action” refers to the Respondent’s stated intention to enforce his order to call witnesses when the suppression hearings were reconvened. That this is the case is made all the more obvious by the Third Department’s holding that “requiring a prosecutor to call witnesses to avoid being held in 27 contempt would exceed the trial court's authority and impact the entire proceeding” (Soares v. Carter, 113 AD3d at 995). Respondent’s repeated attempt to redefine the subject of the writ issued by Supreme Court is the keystone of the straw man argument he presents to this Court. Without that redefinition, the entire argument collapses. The writ of prohibition that was found to lie and that was issued in an exercise of Supreme Court’s discretion prohibited Respondent from enforcing his orders only insofar as they require the District Attorney to call witnesses or put on proof at the suppression hearings (R 458). Notwithstanding the fact that the word “contempt” appears nowhere in the order and judgment appealed from, Respondent repeatedly asserts that he “did not threaten to act in excess of his lawful authority when he threatened to hold petitioner in contempt” (Respondent-Appellant’s Brief at p. 26). Neither Petitioner nor Supreme Court ever claimed that the threat of contempt was an act in excess of the Respondent’s authority. The order to call witnesses at the suppression hearing was the ultra vires act. Contempt was the threatened punishment for not complying with the ultra vires order. Without question, Respondent retains the full panoply of tools always available to him, including the power of contempt, to enforce any lawful mandate he may issue. But a court cannot so much as lift its gavel to enforce an order that has been determined to be unlawful. 28 On appeal to this Court, Respondent still clings to his through-the-looking- glass view of the facts: that he did not order Petitioner to call witnesses at the suppression hearing but, rather, that he took the same position he had from the beginning, i.e., that “petitioner is free to chart any course in this litigation, so long as it is authorized under the Criminal Procedure Law” (Respondent-Appellant’s Brief at p. 27). This repeatedly rejected characterization of events does not withstand scrutiny. Crucial to Respondent’s argument would be a showing that the Petitioner had pursued a course that was not permitted under the Criminal Procedure Law. As Supreme Court and the Third Department held, and Respondent conceded at oral argument, the “CPL does not mandate that a district attorney call witnesses at a suppression hearing (see CPL 710.60)” (Matter of Soares v. Carter, 113 AD3d 993, 994 [3d Dep’t 2014]). Other than Petitioner’s declination to call witnesses at the hearing when ordered to do so, Respondent has suggested nothing that Petitioner did that he was not permitted to do under the Criminal Procedure Law. Pointing out that there were other tacks which the Petitioner could have taken does not lead to the conclusion that the one taken was impermissible or not within the discretion of the executive. Since the CPL does not require the Petitioner to call witnesses at a suppression hearing, Petitioner’s discretionary decision not to do so is within the bounds of the CPL. It is also consistent with Respondent’s suggested alternate 29 understanding of his order—that Petitioner operate within the ambit of the CPL. Thus, Respondent’s theory that Petitioner was somehow violating a more generalized view of the Respondent’s order by not calling witnesses at the suppression hearing is similarly without merit. The Third Department, while not enthusiastically endorsing the procedure utilized by Petitioner here, held that the avenue pursued by Petitioner was “[c]onsistent with the CPL” (Soares v. Carter, 113 AD3d at 998). Respondent’s basing of his arguments upon his own repeatedly repudiated version of the facts, instead of on the findings of fact that were affirmed below, calls to mind the following: * * * [I]f it was so, it might be; and if it were so, it would be; but as it isn’t, it ain’t. (Lewis Carroll, 1871). By basing his argument on his own alternate set of facts, Respondent impliedly concedes the validity of the arguments of Petitioner, which rely upon the affirmed findings of fact before this Court. Indeed, his concession on this point is more explicit than implicit (Respondent-Appellant’s Brief at pp. 10-11). In any event, rather than follow Respondent down the rabbit-hole and endlessly argue a version of the facts that Supreme Court rejected and which Respondent acknowledges the “Appellate Division did not credit” (Respondent- Appellant’s Brief at p. 23), Petitioner will limit his discussion to the affirmed 30 findings of facts and to the writ actually issued by Supreme Court and affirmed by the Appellate Division. B. Supreme Court Properly Found that a Writ of Prohibition Lies to Prohibit Respondent from Ordering Petitioner to Call Witnesses at the Suppression Hearings. Abandonment and Waiver Initially, Respondent’s failure to address the issuance of the writ prohibiting him from ordering Petitioner to call witnesses at the suppression hearing in his brief to this Court constitutes an abandonment and waiver of that issue. The only writ Respondent challenges is a purported writ prohibiting him from exercising his contempt power over Petitioner. Factually, no such writ was ever issued. When the Writ of Prohibition Lies Prohibition is available to restrain an inferior court from exceeding its authorized powers in a proceeding over which it has jurisdiction (La Rocca v. Lane, 37 NY2d 575, 577 [1975], cert denied, 424 US 968 [1976]); Matter of Proskin v. County Court of Albany, 30 NY2d 15, 18 [1972]; see, Matter of Briggs v. Halloran, 12 AD3d 1016 [3d Dep’t 2004]; see also, Matter of Cloke v. Pulver, 243 AD2d 185 [3d Dep’t 1998]). Prohibition under CPLR article 78 “does not issue as of right, but only in the sound discretion of the court” (Matter of Dondi v. Jones, 40 NY2d 8, 13 [1976]). Because the remedy is discretionary, a court that is asked to impose prohibition “must weigh a number of factors: the gravity of the 31 harm caused by the act sought to be performed by the official; whether the harm can be adequately corrected on appeal or by recourse to ordinary proceedings at law or in equity; and whether prohibition would furnish a more complete and efficacious remedy even though other methods of redress are technically available” (Matter of Rush v. Mordue, 68 NY2d 348, 354 [1986] [internal quotation marks and ellipses omitted]). To warrant the extraordinary remedy of prohibition, it is not enough that the court make 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” (Brown v. Appelman, 241 AD2d 279 [2d Dep’t 1998], citing Matter of Pirro v. Angiolillo, 89 NY2d 351, 355-356 [1996]; Matter of Holtzman v. Goldman, 71 NY2d 564, 569 [1988]; Matter of Rush v. Mordue, 68 NY2d at 353; Matter of Mulvaney v. Dubin, 55 NY2d 668 [1981]; La Rocca v. Lane, 37 NY2d 575, 577 [1975], cert denied, 424 US 968 [1976]). To violate Separation of Powers principles “by nonappealable order is to act without power, however categorized, and involves more than an error of law correctible on appeal in some later phase of the proceeding” (Matter of Proskin v. County Court of Albany, 30 NY2d at 21). A Clear Legal Right to Relief The aim of the New York Constitution is to regulate, define, and limit the powers of government by assigning to the executive, legislative, and judicial 32 branches distinct and independent powers, thereby ensuring an even balance of power among the three (See, Maron v. Silver, 14 NY3d 230, 258 [2010]; N.Y. Const., art. III, § 1; N.Y. Const., art. IV, § 1; N.Y. Const., art. VI, § 1). Because Respondent’s order vested the discretion and power to choose whether to call witnesses at a hearing in the judiciary rather than in the executive, the action implicates the court’s very powers and the Petitioner has demonstrated a clear right to relief. It is clear that Respondent’s order to call witnesses at the suppression hearings is reviewable in this special proceeding. Where, as here, it is claimed that a judge has exceeded his or her statutory authority, a CPLR article 78 proceeding seeking prohibition is appropriate (see, Matter of Premo v. Breslin, 89 NY2d 995 [1997]; Matter of Dillon v. Kowtna, 270 AD2d 219 [2d Dep’t 2000]; Matter of Cloke v. Pulver, 243 AD2d 185 [3d Dep’t 1998]; Matter of Board of Supervisors of Montgomery County v. Aulisi, 62 AD2d 644 [3d Dep’t 1978] affd 46 NY2d 731 [1978]). Respondent conceded at oral argument before the Third Department that the CPL does not require the District Attorney to call witnesses at a suppression hearing and does not provide the court with the authority to order that this be done. Thus, by ordering Petitioner to do so, the Respondent has plainly exceeded his powers and Petitioner is clearly entitled to relief. 33 In a thoughtful and well-reasoned opinion, Supreme Court held that City Court acted well beyond the scope of its authority when it ordered the District Attorney to call witnesses. Supreme Court began with the premise that “[t]he concept of the separation of powers is the bedrock of the system of government adopted by this State” (R 25). Supreme Court recognized that “a fundamental principle of the organic law [is] that each department should be free from interference, in the discharge of its peculiar duties, by either of the others” (R 25). The District Attorney is a constitutional officer that draws life and vitality from the State Constitution (N.Y. Const., art. XIII, § 13). State statute confers on him the power to prosecute all crimes in his jurisdiction (County Law § 700[1]). Supreme Court reasoned that the power to prosecute necessarily includes the power not to prosecute (R 25-26), but more importantly it recognized that the unlimited grant of prosecutorial authority gives the District Attorney considerable discretion in determining the manner of prosecution (People v. Di Falco, 44 N.Y.2d 482, 486 [1978]) (R 25-26). As a constitutional officer, the District Attorney has been “chosen by the electors of his or her county to prosecute all crimes and offenses, who enjoys wide latitude and discretion to allocate and use both the staff and resources of the office in a manner believed to be most effective to the discharge of his or her duties” (Matter of Soares v. Herrick, 88 AD3d 148, 153 affirmed 20 NY3d 139; Matter of Czajka v. Koweek, 100 AD3d 1136, 1139 34 [3d Dep’t 2012]). It is for the District Attorney, not the court, to determine what witnesses to call, what evidence to seek to introduce, and what legal arguments to make throughout the proceedings (R 25-26). It was therefore clear error to improperly invade the province of the District Attorney by ordering him to prosecute the case in a certain manner (R 25-26). Quintessentially, it is the duty of a judge to impartially preside over hearings, a role that is incompatible with giving the District Attorney direction over how to proceed (R 25-26; see Cantwell v. Ryan, 309 AD2d 1042, 1042 [3d Dept. 2003]). Once prosecution of the case is pursued and pending, the district attorney remains “presumptively the best judge of whether a pending prosecution should be terminated” (United States v. Cowan, 524 F2d 504, 513 [1975], cert denied sub nom. Woodruff v. United States, 425 US 971 [1976]). Perhaps most persuasively, Supreme Court considered, as have other courts facing the same issue, the compelling question of “What Next?” (R 28; United States v. Greater Blouse, Skirt & Neckwear Contractors Association, 228 FSupp 483, 489–490 [SDNY1964]) and concluded that an order to proceed with a prosecution would necessarily entail ongoing entanglement in the workings of the District Attorney’s Office. Such entanglement would have no principled limitation, and in the face of an unwilling District Attorney, the judge would little 35 by little become the prosecutor. That result is incompatible with the notion of an impartial judge. For all these reasons, Supreme Court properly ruled that Respondent overstepped his boundaries by ordering the District Attorney to perform his duties in a particular manner—to wit, by calling witnesses. Accordingly, the writ lies. Respondent Carter’s Concessions Establish a Clear Legal Right to Relief. Respondent Carter contends on this appeal that Petitioner has failed to demonstrate a clear legal right to relief. Yet, in his brief before the Third Department he conceded that an order which vested “the discretion and power to choose whether to call witnesses at a hearing in the court rather than the executive,” would be an order in excess of his power, and then “petitioner might have a clear legal right to relief” (Respondent Carter’s Appellate Division Brief at p. 28). Since both Supreme Court and the Third Department have found, as a factual matter, that Respondent ordered Petitioner to call witnesses at the suppression hearing, even Respondent has acknowledged that “petitioner might have a clear legal right to relief” (Id.). C. This Case Does Not Involve Nolle Prosequi Respondent Carter raises the specter of nolle prosequi, which Respondent contends is the procedure Petitioner substantially employed in this case. 36 Respondent claims that Petitioner conceded in the court below that nolle prosequi no longer exists (Respondent-Appellant’s Brief at p. 9). Petitioner did no such thing. In fact, Petitioner argued in the Appellate Division that “Nolle Prosequi is (Mostly) Dead but Prosecutorial Discretion is Not” (Petitioner’s Appellate Division Brief at 27). But Petitioner has never sought to invoke the doctrine of nolle prosequi, and never referenced it until Respondent used those words to describe Petitioner’s actions (R 185-187). Instead, Petitioner has sought to explain why his actions do not constitute nolle prosequi. In the Appellate Division, Petitioner pointed out that in People v. Extale, this Court left open the question of whether nolle prosequi had been abolished with regard to accusatory instruments not originating in the grand jury (18 NY3d 690, 695 [2012]; see CPL § 100.10; cf. People v. Urbaez, 10 NY3d 773 [2008]). Extale also suggested that a court may have inherent power to dismiss charges in some circumstances (18 NY3d at 695). Such authority could reasonably be exercised here, where both prosecutor and defendant agree that a charge should not go forward. The question left open in Extale is not presented by this case. Nevertheless, Respondent seeks to tie Petitioner’s proposed outcome here to nolle prosequi, arguing that both procedures are “opaque”. But they are no more opaque than the procedure employed daily for felony-level charges across the state: A defendant is summarily arrested on a felony complaint. He waives his right to a 37 preliminary hearing and is held on bail. Plea negotiations begin, and the District Attorney investigates further. The District Attorney determines (for any number of reasons) that prosecution is unwarranted, and declines to present the case to the grand jury. The case subsequently expires under CPL § 30.30. No one would confuse that procedure with nolle prosequi. The People make no claim that they may unilaterally dismiss the case, but by not taking action they constrain the court to do so. Here, Petitioner sought to do the same thing, in the legal equivalent of taking a knee on fourth down. That procedure is no more or less “opaque” to the public than declining to present charges to the grand jury. And they both constitute valid exercises of prosecutorial discretion by the District Attorney. Respondent’s specious argument that Petitioner’s failure to present witnesses at the suppression hearing will lead to bribery and “a thousand other equally egregious possibilities” merits little discussion 1 (Respondent-Appellant’s Brief at p. 9). Declining to call witnesses in open court is an inherently public act, and one that is rare enough to merit much more attention than the death by a thousand cuts many felony cases go through. Since that is true, Respondent’s fear that a declination to call witnesses will make the prosecutor accountable to no one is unwarranted. The State Constitution 1 No such accusations are lodged against Petitioner here, and the District Attorney is presumed to act impartially (People v. Dowdell, 88 AD2d 239, 43 [1st Dep’t 1982]). 38 makes the district attorney accountable to the people of his county, for whom he is a “guardian of th[e] public trust” (People v. Zimmer, 51 NY2d 390, 396 [1980]). The district attorney is also checked by the Governor, who may remove him from office (N.Y. Const., art. XIII, § 13) or supersede him on specific cases (Executive Law § 63[2]). As Supreme Court recognized, the public nature of the act, coupled with overlapping mechanisms for removal, means that there is a “clear line of accountability” for Petitioner’s actions (41 Misc.3d 195, 214). Curiously, under Respondent’s theory of the case, it would be Respondent who is left unaccountable—free to play prosecutor from the bench with no effective mechanism to challenge his actions. D. Prosecutorial Discretion in Misdemeanor and Violation Prosecutions. Respondent insists that the only legitimate use of prosecutorial discretion in a misdemeanor or violation case is to decline the case at its beginning. Under this view, the fact that the Petitioner appeared at arraignment, filed superseding accusatory instruments, made recommendations relative to the defendant’s pretrial release status, served CPL 710.30 notices, and declared ready for trial constituted an affirmative decision to prosecute, one that can never be taken back or modified (Respondent’s Brief at 15; 17; 31). To Respondent, the prosecutor’s discretion to decline prosecution is solely the discretion not to file charges. 39 But Respondent’s argument ignores the realities of local court practice and, if adopted by this court, will serve to substitute the considered discretion of the prosecutor for that of the patrolman in misdemeanor and violation cases. In many local courts, including Albany City Court, it is the police who file accusatory instruments and serve CPL § 710.30 notices. Arraignment is the responsibility of the court (People v. Goss, 87 NY2d 792, 797 [1996] [“Arraigning a defendant... is exclusively a court function”]; See also People v. Carter, 91 NY2d 795, 798 [1998]), and the prosecutor’s bail recommendation is not required in misdemeanor and violation cases (CPL § 530.20). The prosecutor’s first interaction with the case typically occurs at arraignment (or even well after it), when trial readiness is declared based on facially sufficient paperwork filed by the police. Then further investigation occurs. As the prosecutor gathers additional facts, he must impartially weigh them to determine the fairest outcome in a case (People v. Dowdell, 88 AD2d 239, 43 [1st Dep’t 1982]). In some instances, the only reasonable way forward is undoubtedly to decline to prosecute. The circumstances that might underlay a prosecutor’s exercise of discretion are numerous and do not necessarily fit neatly into CPL motions to dismiss for legal impediments or in furtherance of justice. A prosecutor might choose not to prosecute in a case where alternative remedies, such as civil actions, exist and are sufficient to vindicate the state’s interest in justice (Roger A Fairfax Jr., 40 Prosecutorial Nullification, 52 BCL REV 1243, 1259 [2011]). Or where the facts of a case make it appear that any additional punishment would be unwarranted (Id. at 1260 n.62). Or where a course of conduct made criminal by a statute is out of step with the prevailing morals of the day, and which is seldomly enforced via a sort of passive desuetude, as with the statute against adultery (See Penal Law § 255.17; Fairfax, 52 BCL REV at 1260 n.64), which still occasionally makes its way into a charging document. 2 If Respondent is correct, the prosecutor lacks discretion over how ultimately to conduct misdemeanor and violation prosecutions, or at least it is made subject to the whim of another branch of government. All of his discretion will have been dithered away, ab initio, by the well-meaning patrolman who charges the crime he sees in the pages of his Penal Law statute book, incorrectly believing that the prosecutor has the discretion to do justice in the individual case. Respondent worries that the deliberative decisions of the elected District Attorney will produce unjust results, but Respondent’s scheme would lock the prosecutor in to charges that are filed with little reflection by an unelected police officer. How converting Prosecutorial Discretion to Patrolman’s Discretion will result in a more just and fair system is a point Respondent conspicuously fails to address. 2 Eamon McNiff, Woman Charged With Adultery to Challenge New York Law, ABCNEWS.COM [June 8, 2010], available at http://abcnews.go.com/TheLaw/woman- charged-adultery-challenge-york-law/story?id=10857437). 41 E. Petitioner Committed No Contemptuous Act Respondent contends that Petitioner’s conduct in court was “consciously designed to denigrate the authority of respondent” (Respondent-Appellant’s Brief at 28). The act of disagreeing with Respondent on a fine point of procedure was, in his view, “an act of deliberate effrontery and contempt” and “a deliberate contumacy, a thumbing of petitioner’s nose” directed to him (Respondent- Appellant’s Brief at 12 & 8). Respondent has indignantly declared that Petitioner had the “unmitigated gall and effrontery” to appear in his courtroom through a “hapless subordinate” (Chief Assistant District Attorney David Rossi) and take a legal position with which he disagreed (Respondent’s Appellate Division Brief at 19). This constitutes, in Respondent Carter’s estimation, “‘[d]isorderly, contemptuous or insolent behavior * * * directly tending to interrupt [the] proceedings, or to impair the respect due to [his] authority’” (Respondent- Appellant’s Brief at 27). The transcript of the hearing simply does not support Respondent’s characterization of what transpired (R 229-242). Petitioner was represented by his Chief Assistant, his Special Counsel, and a local court ADA. The record reflects that they conducted themselves professionally and respectfully throughout the proceedings. Legal arguments were made, which were subsequently found to be 42 persuasive by Supreme Court and the Third Department. Far from showing that Petitioner was contumaciously disrespectful, it shows that he was politely correct. Furthermore, it is clear from the dialog at the hearing that the section of the Judiciary Law upon which Respondent had been relying – and the language which the People referenced during the colloquy – pertained to Judiciary Law § 750[3] [Willful disobedience of a lawful mandate] (R 233-235). At the hearing, Respondent Carter made reference only to Petitioner’s “refusing to call witnesses” or “not calling witnesses” and at no time intimated that he considered Petitioner’s behavior to be “disorderly, contemptuous or insolent” (R 233-235). Respondent Carter’s present contention that Petitioner’s good faith assertion of Separation of Powers principles qualifies as “disorderly, contemptuous or insolent behavior” is substantially undermined by Supreme Court’s finding that Petitioner’s arguments were both made in good faith and were meritorious (See, In re Rotwein, 291 NY 116, 123 [1943] [A statement which might impair respect for the judge can hardly constitute ‘disorderly, contemptuous or insolent behavior’ within the meaning of the statute, if it is made by the attorney in good faith. . . . in the honest belief that it is relevant, and without reckless disregard of the truth or intent ‘to impair the respect due to’ the court]). If Respondent is correct that the polite discussion that occurred in Albany City Court constituted “insolent behavior,” then every disagreement with Respondent is an attack upon the court. 43 Once again, Respondent attempts to argue facts that appear nowhere on the record and which are irrelevant to the underlying action, obscuring the legal issue this Court is called upon to address. The question presented here is not whether Petitioner was in contempt of Respondent’s authority. The question is whether Respondent had the power to order the District Attorney to call witnesses at a suppression hearing. Nothing in Supreme Court’s order prevents Respondent from punishing an actual contempt. 44 POINT II SUPREME COURT PROVIDENTLY EXERCISED ITS DISCRETION IN GRANTING THE WRIT OF PROHIBITION. Petitioner respectfully submits that Supreme Court’s grant of the writ of prohibition in this matter constituted a prudent exercise of its discretion. It is well established that even where prohibition is an available remedy, it “is not mandatory, but may issue in the sound discretion of the court” (Matter of Soares v. Herrick, 20 NY3d 139, 145 [2012]; La Rocca v. Lane, 37 NY2d 575, 579 [1975]). When a court is evaluating how to exercise its discretion in this regard, “various factors are to be considered, such as the gravity of the harm caused by the excess of power, the availability or unavailability of an adequate remedy on appeal or at law or in equity and the remedial effectiveness of prohibition if such an adequate remedy does not exist” (Matter of Soares v. Herrick, 20 NY3d at 145; Matter of Dondi v. Jones, 40 NY2d at 13; see La Rocca v. Lane, 37 NY2d at 579– 580). Respondent again implicitly concedes the impropriety of ordering the Petitioner to call witnesses at the suppression hearing by refusing to address that order and continuing to argue as if Supreme Court had prohibited his general ability to use his contempt power instead. In contending that Supreme Court abused its discretion in granting the writ of prohibition, Respondent addresses the 45 three primary factors a court should consider in determining how to exercise its discretion. A. Unavailability of an Adequate Remedy on Appeal or at Law or in Equity. CPL § 450.20 sets forth the People’s available appellate remedies. Clearly, neither this nor any other statute provides the Petitioner with an avenue to appeal a trial court’s order to the People that they call witnesses at a suppression hearing. That fact suffices to establish that the normal appellate remedies for the correction of trial errors are inadequate to correct the threatened action far in excess of Respondent’s authority (Compare Balter v. Regan, 63 NY2d 630 [1984] [unlawful order produced no prejudice to defendant, who could appeal]). Nor is availability of an appeal to a finding of contempt adequate in these circumstances. To begin with, the notion that an executive branch official (or his subordinates) must risk his pecuniary security, bar license, and possibly freedom in order to obtain review of an order that fundamentally alters the criminal justice system is unjustifiably harsh. Moreover, the appeal process for contempt would not necessarily lead to a ruling on the merits of the underlying legal dispute. An appeal of a contempt order could be resolved on narrower grounds or grounds unrelated to the merits of the legal dispute—for instance, it could be determined that the punishment was an abuse of discretion. Such a decision would not resolve the constitutional question 46 that cries out for resolution, and would allow these circumstances to replay themselves again and again in courts throughout the state. In response, Respondent takes the untenable position that when a court is evaluating whether to exercise its discretion, the word “remedy” is synonymous with alternatives, i.e., the Petitioner could have simply complied with the ultra vires order to call witnesses by choosing one of his other available options (Respondent-Appellant’s Brief at 33). A member of the judiciary may not cabin the discretion of the executive branch in this fashion. This is not what the word “remedy” means. The word “remedy” is defined by Black’s Law Dictionary as “[t]he means by which a right is enforced or the violation of a right is prevented, redressed or compensated” (Black’s Law Dictionary 1294 [6th ed. 1990]). Permitting a violation of Separation of Powers principles to go unchallenged by either acceding to the excess of power or choosing another option is not a “remedy” for that violation. 3 Under Respondent Carter’s theory of the law, the only “plausible” way to determine the good-faith legal dispute between himself and the District Attorney— an elected official from a co-equal branch of government—would be for the District Attorney to concede that Respondent is correct (Respondent’s Brief at 33). 3 One of Respondent’s alleged options for Petitioner was to make a motion to dismiss the proceeding in the interests of justice. But Respondent Carter candidly acknowledges in his brief that his two prior written decisions indicated that he believed the record was devoid of any basis upon which such a motion might be granted. (Respondent- Appellant’s Brief at p. 8). 47 Any other course of action, Respondent argues, would establish that he is not “the highest authority” in his court (Respondent’s Brief at 28). It is perhaps unsurprising, then, that Respondent characterizes this appeal not as a legal dispute, but as a “contest of wills” between himself and the District Attorney (Respondent’s Brief at 33). Petitioner submits that the Constitution is the highest authority in Respondent’s courtroom, and in every courtroom in this state. Accordingly, proper respect for the delineation of authority between the three branches of government should be observed in every courtroom. Supreme Court and the Third Department correctly determined that Petitioner had no other adequate remedy available and Respondent has failed to demonstrate otherwise. B. The Gravity of the Harm. Maintaining the position that contempt is the focus of these proceedings, Respondent concludes that holding the District Attorney of Albany County in contempt would not inflict particularly grave harm. Therefore, the argument goes, Supreme Court abused its discretion in granting the writ. This contention is meritless. Neither Petitioner, nor Supreme Court, nor the Third Department maintained that probable contempt sanctions were the harm caused by Respondent’s ultra vires order. Instead, the obliteration of the line separating the powers of the executive and the judiciary was the harm at issue. The order also 48 does violence to our criminal justice system and the rights of criminal defendants, as observed by Supreme Court: An order compelling an unwilling district attorney to put on proof under threat of imprisonment seems incompatible with the proper role of the courts. “We of the judiciary are called upon to impartially preside over and adjudicate criminal proceedings” (Cantwell, 309 A.D.2d at 1043, 766 N.Y.S.2d 135). In this role, a judge serves as check on the executive branch in enforcing the criminal laws enacted by the legislative branch. Vesting “the plenary prosecutorial power in the executive branch safeguards liberty, for, in conjunction with the plenary legislative power of [the legislature], it assures that no one can be convicted of a crime without the concurrence of all three branches.... When a judge assumes the power to prosecute, the number shrinks to two” (In re United States, 345 F.3d at 454) (Soares v. Carter, 41 Misc3d at 213-214). Likewise, the Third Department observed that: The CPL does not mandate that a district attorney call witnesses at a suppression hearing (see CPL 710.60), and Supreme Court succinctly set forth some of the potential serious problems that would arise if a trial court required a district attorney to do so (41 Misc 3d at 211). Since requiring a prosecutor to call witnesses to avoid being held in contempt would exceed the trial court's authority and impact the entire proceeding, we are unpersuaded that Supreme Court's narrowly tailored order of prohibition constituted an abuse of its discretion (Soares v. Carter, 113 AD3d at 995 [emphasis added]). The “serious problems” referenced by the Third Department, and succinctly described by Supreme Court included: 49 * * * [E]ven if Judge Carter's assessment of the situation is correct and the District Attorney's actions are ultra vires or go beyond the bounds of permissible discretion, the remedy does not lie in a trial court assuming an unauthorized prosecutorial role or acting in excess of its judicial jurisdiction. Even a generalized directive to “prosecute” contemplates ongoing judicial review of the manner in which a prosecution is conducted, and enforcement of such an order would inappropriately entangle the court in a supervisory role. If a district attorney must “participate” in a suppression hearing by calling witnesses, who must be called? What questions must they be asked? What other evidence must the prosecutor seek to introduce? Must legal arguments be made, and, if so, which ones? Questions such as these simply are not amenable to judicial review or oversight; they are matters committed to the executive branch (Soares v. Carter, 41 Misc3d at 211). The violation of Separation of Powers principles, the disordering of the criminal justice system, and the unfairness to criminal defendants are the grave harms which the granting of the writ of prohibition is intended to remedy. C. The Remedial Effectiveness of Prohibition. Respondent contends that the writ of prohibition is an ineffective remedy because it fails to resolve the question: “is a district attorney able to conclude a prosecution simply by filing a letter stating her intent to not prosecute a particular defendant?” (Respondent Carter’s Brief at p. 41). That question was not the subject of the writ of prohibition granted here. Thus, it is unremarkable that the remedy does not address it. The writ of prohibition enjoins Respondent from ordering Petitioner to call witnesses at a suppression hearing in violation of the 50 Separation of Powers—nothing more, nothing less. It is plainly effective in accomplishing its single objective. D. What Next? One question in particular weighed heavily on the mind of Supreme Court in making its discretionary determination to issue a writ of prohibition in this case. That same question permeates this entire action. If Respondent wins and this case is returned to Albany City Court, what next? It is not difficult to imagine. The Respondent, backed by the highest court of this state, orders the prosecutor to call witnesses under threat of contempt. Wisely, the prosecutor obliges. He asks his witness a few questions, but not enough to sustain his burden at the hearing. Unsatisfied, Respondent orders the prosecutor to ask more questions. If Respondent is unhappy with those questions, may he direct what questions to ask? Or perhaps Respondent will question the witness himself—he can do a better job than the prosecutor anyway (See People v. Yut Wai Tom, 53 NY2d 44, 58 [1981]). Following an exhaustive direct examination, it is clear that the witness does not have sufficient information to sustain the People’s burden. The People rest. May the Respondent then order the prosecutor to call another witness? May he direct which witness? This sounds absurd because it is. The Respondent is a member of the Judicial branch, not the Executive. It is firmly within the discretion of the 51 Executive branch to decide whether and who to call as witnesses at a proceeding. Anything else misapprehends the nature of the criminal justice system. This is to say nothing of the defendants, caught in the middle of the dispute. Perhaps their attorney wants to object, but holds his tongue rather than risk a finding of contempt. As Columbia County Court Judge Jonathan D. Nichols put it in People v. Beckman, 38 Misc3d 878 [N.Y.Co.Ct., 2012]: A more ill conceived symphony of criminal procedure with the court as both composer and conductor is difficult to envision. Absent dismissal, the prejudice to both the People and the defendant, the potential damage to the court's image and integrity and the inexcusable waste of judicial resources is self evident and inevitable. Other courts that have grappled with this question have come to the same conclusion. Supreme Court observed that the “what next?” question was aptly framed by the judge in United States v. Greater Blouse, Skirt & Neckwear Contractors Association, 228 FSupp 483, 489–490 [SDNY 1964]: Should the motion be denied, what next? The Attorney General is the head of the Department of Justice, a part of the Executive branch of the Government. Even were leave of Court to the dismissal of the indictment denied, the Attorney General would still have the right to adhere to the Department's view that the indictment cannot be supported by proof upon a trial of the merits, and accordingly, in the exercise of his discretion, decline to move the case for trial. The Court in that circumstance would be without power to issue a mandamus or other order to compel prosecution of the indictment, since such a direction would invade the traditional separation of powers doctrine. 52 In another case, Judge Richard Arcara of the Western District of New York observed: “[I]f the Court were to deny the motion and require the government to proceed to trial, the government would refuse to offer any evidence, thereby leaving this Court with no choice but to enter judgment of acquittal” (United States v. Marra, 228 FSupp2d 280, 283 [WDNY 2002]). The CPL requires the same result. Where a prosecutor fails to meet his burden at a suppression hearing, the court is constrained to grant a motion to suppress the evidence (see CPL § 710.60). And if the prosecutor presents no proof at trial, a motion for a trial order of dismissal would be made and must be granted (see CPL § 290.10; R270 [Memo from Hon. George B Ceresia, Jr. to Third Judicial District Town and Village Justices (May 24, 2012)]). Only Respondent has a different view of the constitutional values at stake. He argues that granting the writ effectively shifts “the balance of power between the judiciary and the executive branches* * * toward the executive branch” (Respondent-Appellant’s Brief at 42). But the power that Respondent arrogates to himself is the power to coerce his way around the Constitution. For that reason, Petitioner respectfully submits that granting of the writ constituted a prudent exercise of the Court’s discretion. Respondent cannot show otherwise. 53 CONCLUSION THIS DECISION, ORDER AND JUDGMENT WHICH GRANTED THE WRIT OF PROHIBITION SHOULD, IN ALL RESPECTS, BE AFFIRMED. RESPECTFULLY SUBMITTED, P. DAVID SOARES ALBANY COUNTY DISTRICT ATTORNEY ATTORNEY FOR PETITIONER-RESPONDENT ALBANY COUNTY JUDICIAL CENTER 6 LODGE STREET ALBANY, NEW YORK 12207 TEL. (518) 487-5460 Dated: October 27, 2014 By:_______________________ CHRISTOPHER D. HORN Of Counsel VINCENT STARK Of Counsel