In the Matter of P. David Soares,, Respondent,v.William A. Carter,, Appellant, Colin Donnaruma et al., Respondents.BriefN.Y.March 23, 2015APL-2014-00137 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. BRIEF FOR AMICUS CURIAE DISTRICT ATTORNEYS ASSOCIATION OF THE STATE OF NEW YORK FRANK A. SEDITA, III District Attorney, Erie County President, District Attorneys Association of the State of New York c/o Richmond County District Attorney 130 Stuyvesant Place Staten Island, New York 10301 MORRIE I. KLEINBART Assistant District Attorney/Richmond County TAMMY J. SMILEY Assistant District Attorney/Nassau County Counsel for Amicus Curiae TABLE OF AUTHORITIES Cases Curry v. Hosley, 86 N.Y.2d 470 (1995) ..................................................................18 Forti v. New York State Ethics Comm’n, 75 N.Y.2d 596 (1990) ...........................11 Johnson v. Pataki, 91 N.Y.2d 214 (1997) ................................................................14 Matter of Donnaruma v Carter, 41 Misc. 3d 195 (Sup. Ct., Albany Co. 2013) ........ 9 Matter of Soares v. Herrick, 20 N.Y.3d 139 (2012) ................................................13 Matter of Working Families Party v. Fisher, 23 N.Y.3d 539 (2014) ......... 19, 20, 21 People v. Andrades, 4 N.Y.3d 355 (2005) ...............................................................19 People v. Clayton, 41 A.D.2d 204 (2d Dep't 1973) .................................................23 People v. Cook, 193 A.D.2d 366 (1st Dep't 1993) ..................................................23 People v. De Jesus, 42 N.Y.2d 519 (1977) ..............................................................17 People v. De Pallo, 96 N.Y.2d 437 (2001) ..............................................................19 People v. Di Falco, 44 N.Y.2d 482 (1978) ..............................................................11 People v. Extale, 18 N.Y.3d 690 (2012) ........................................................... 10, 23 People v. Jamison, 47 N.Y.2d 882 (1979) ...............................................................17 People v. Leahy, 72 N.Y.2d 513 (1988) ..................................................... 11, 13, 15 People v. Moulton, 43 N.Y.2d 944 (1978) ..............................................................17 People v. Savvides, 1 N.Y.2d 554 (1956) ................................................................19 People v. Swamp, 84 N.Y.2d 725 (1995) ................................................................24 i People v. Yut Wai Tom, 53 N.Y.2d 44 (1981) ........................................................17 Rapp v. Carey, 44 N.Y.2d 157 (1978) .....................................................................26 Saratoga County Chamber of Commerce v. Pataki, 100 N.Y.2d 801 (2003) .........11 Soares v. Carter, 113 A.D.3d 993 (3d Dept. 2014) ........................................ 6, 7, 10 Statutes County Law § 700 ....................................................................................................18 County Law § 701 ............................................................................................. 12, 14 CPL § 170.30 (1)(f) ..................................................................................................24 CPL § 170.40 .......................................................................................................2, 23 CPL § 180.85 ...........................................................................................................22 CPL § 180.85(1) .......................................................................................................22 CPL § 210.20(1)(h) ..................................................................................................24 CPL § 30.30 .............................................................................................................23 CPL § 710.30 .........................................................................................................3, 4 CPLR Article 78 ......................................................................................................... 8 Executive Law § 63(2) ...................................................................................... 14, 15 Other Authorities ii Rules of Professional Conduct, Rule 3.8 .................................................................16 Rules of Professional Responsibility, Rule 3.3(a)(3) ..............................................18 Constitutional Provisions NY CONST, Art III ....................................................................................................11 NY CONST, Art IV ...................................................................................................11 NY CONST, Art VI ...................................................................................................11 NY CONST., Art XIII, § 13 (b) .......................................................................... 19, 27 iii 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. APL-2014-00137 BRIEF FOR AMICUS CURIAE DISTRICT ATTORNEYS ASSOCIATION OF THE STATE OF NEW YORK PRELIMINARY STATEMENT By permission of this Court, granted on June 10, 2014, respondent William A. Carter, Albany City Court Judge, appeals from an order of the Appellate Division, Third Department, entered on January 23, 2014. That order affirmed a judgment of the Supreme Court, Albany County, rendered on or about July 11, 2013, granting a petition, brought by respondent P. David Soares, the District Attorney of Albany County, seeking to prohibit enforcement of orders of respondent Carter, insofar as they required the District Attorney to call witnesses or put on proof at the suppression hearings in the criminal cases pending against respondents Colin Donnaruma, Daniel Morrissey, Eric Cantine, and Timothy Holmes. The District Attorneys Association files this brief as amicus curiae in connection with this appeal. STATEMENT OF AMICUS CURIAE The District Attorneys Association of the State of New York (“DAASNY”) is a State-wide organization composed of the 62 elected District Attorneys from throughout the State of New York, the Special Narcotics Prosecutor of the City of New York, and their nearly 2900 assistants. As the designated State constitutional officers charged with enforcing the penal law in their respective jurisdictions, members of DAASNY are an integral part of the executive branch of New York State’s tripartite system of government. When insuring that the penal law is faithfully executed by enforcing it in their respective jurisdictions, members of DAASNY enjoy broad and unreviewable discretion to decide when, in what manner, and indeed if at all whether to prosecute an accused. In directing the District Attorney to call a witness over that officer’s objection and insisting that, if the District Attorney believed it should not go forward, the People file a CPL Section 170.40 motion, respondent Judge Carter impinged on this broad discretion and, more significantly, acted in direct contravention of the established 2 constitutional order. This violation of the doctrine of separation of powers is of broad concern to all the members of DAASNY and prompts this filing. THE RELEVANT FACTS On June 13, 2012, respondents Donnaruma, Morrissey, Cantine, and Holmes were arrested in connection with activities of the so-called “Occupy Albany” group. Each was charged with Disorderly Conduct and Donnaruma was additionally charged with Resisting Arrest. At the arraignment of each defendant- respondent two days later before respondent Judge Carter, the People filed superseding informations, made bail recommendations, served appropriate CPL Section 710.30 notices, and announced their readiness for trial. The cases were adjourned for pretrial motions and on a subsequent appearance, the People offered to dispose of the cases with adjournments in contemplation of dismissal. Respondent Judge Carter agreed, on the condition that respondents Donnaruma, Morrissey, Cantine, and Holmes perform community service. They rejected this disposition on September 7, 2013, and then moved, in identical papers, to dismiss the pending accusatory instruments, representing that the People had advised them that they would decline further prosecution. This had not been communicated to the court by the prosecution, and it was not until October 4, 2012, that the People advised respondent Judge Carter that they declined to prosecute the charges, adding that the People would not participate 3 in any further motion practice. On November 26, 2012, respondent Judge Carter denied the motions to dismiss. As relevant here, the judge concluded that the People’s announcement that they would not participate in further proceedings was entitled to no consideration whatever, inasmuch as they had previously participated in the proceedings. Hence, according to the respondent judge, if the People believed the cases should not go forward, they were obliged to move to dismiss the instruments in the interest of justice. By letter dated December 4, 2012, the People advised the court that "the People will not be going forward or calling any witnesses at any hearings or trials scheduled in the above captioned matters and are, accordingly, not ready for trial pursuant to CPL 30.30." The letter further stated that the Office "will, of course, be present at any and all scheduled court dates." Respondents Donnaruma, Morrissey, Cantine, and Holmes then moved to dismiss the pending informations on a variety of grounds; among those grounds was a contention that the People’s decision not to proceed presented a legal impediment to conviction within the meaning of CPL Section 170.30(1)(f). The People announced that they did not oppose these motions, but respondent Judge Carter denied the motions. As relevant to this particular argument, respondent Judge Carter concluded that the People were attempting to invoke the doctrine of nolle prosequi which had been abolished by the Legislature. 4 Respondent Judge Carter went on to chastise the parties for failing to seek to dismiss the informations in the interest of justice and added that in his view, the record before him did not allow the court to make such a motion sua sponte. On May 24, 2013, the parties returned to City Court. There, the People announced that the District Attorney had decided to decline prosecution of the matter, would not oppose any defense motions, but would nevertheless continue to appear. Respondent Judge Carter demurred, commenting that mere appearance was insufficient to fulfill the People’s obligations. After further discussion between the People and the court, the court insisted that the People call their witness on pain of being held in contempt. Petitioner Soares commenced the underlying petition, and, on or about July 11, 2013, Justice Richard Platkin granted it. Respondent Judge Carter took an appeal from that part of Justice Platkin’s order which had granted petitioner Soares’s application. In an opinion by Justice John A. Lahtinen, the Appellate Division, Third Department unanimously affirmed. The Appellate Division observed that respondent had indeed threatened to hold the prosecutor in contempt if he did not obey the direction to call witnesses at the suppression hearing It agreed that requiring a prosecutor to call a witness on pain of a contempt finding would exceed the trial court’s authority and impact the entire proceeding, justifying the grant of relief. The Appellate Division rejected the notion that respondent Carter had been 5 prohibited from exercising his contempt power to compel compliance with the CPL. It noted that neither the CPL nor any relevant statute, required a district attorney to call witnesses or put on any proof at a suppression hearing. Hence, “[g]iven a district attorney’s broad discretion – implicating separation of powers – in determining the manner to proceed in a criminal case, respondent [Carter] cannot mandate such action under threat of contempt.” Soares v. Carter, 113 A.D.3d 993, 995 (3d Dept. 2014)(citation omitted). The court also rejected respondent Carter’s insistence that he was simply trying to insure disposition of cases consistent with the CPL. To be sure, acknowledged the Appellate Division, although the district attorney is the best position to determine whether a prosecution should be terminated, at some point, dismissal cannot be done unilaterally by the district attorney. This is to protect defendants from a district attorney’s abuse of his power and the possible reinstitution of charges at a more favorable time and place. But where, as here, both the defendant and the People want the matter dismissed, the matter should be disposed of, unless the district attorney has engaged in some form of egregious misconduct violative of the public interest. And, if that were to occur, the governor could remove the district attorney. The court went on to suggest that a motion pursuant to CPL Section 170.40, the so- 6 called Clayton motion, would have been appropriate here, even if not fully consistent with the factors detailed in the statute. In the end, however, the Appellate Division reminded that when “Where a district attorney decides not to pursue a pending case and it is not one of the rare instances where the defendant objects, or even rarer occurrences where bad faith is implicated, then avenues exist under the CPL for dismissal—some of which are more respectful than others of the taxpayers who are funding the Judiciary and the prosecutor (as well as often the defense counsel via assignment).” Soares v. Carter, 113 A.D.3d at 998. ARGUMENT A COURT CANNOT DEMAND OF THE DISTRICT ATTORNEY THAT HE OR SHE CALL A WITNESS FOR ANY PROCEEDING. In the course of contentious proceedings before respondent Judge Carter in Albany City Court, petitioner Soares advised the court of his intention to cease participation in the matter involving the four “Occupy Albany” respondents. After neither the People nor the defense moved to dismiss the proceedings in the interest of justice, the court stated that the record before him did not permit him to grant dismissal in the interest of justice, pursuant to CPL Section 170.40(2), on the court’s own motion. The parties then appeared for combined suppression hearings 7 and the People declined to call any witnesses, explaining that the District Attorney had decided “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.” After further colloquy concerning the People’s intention to decline prosecution, respondent Judge Carter acknowledged that it was up to the People to decide what witnesses to call, but maintained that the willful refusal to participate was of a different magnitude and permitted the court to hold the District Attorney in contempt. Understanding respondent Judge Carter’s action as mandating that the People call witnesses at a suppression hearing, the District Attorney commenced a special proceeding pursuant to CPLR Article 78 for an order prohibiting enforcement of such a directive. The matter was heard before Supreme Court Justice Richard Platkin who granted the petition, reasoning that the District Attorney possessed broad authority and discretion over all phases of a criminal prosecution and that this necessarily included decisions about the witnesses to be called on behalf of the People, the testimony to be elicited, the other proof to be offered into evidence, and the arguments to be made and decisions about witnesses not to be called. In the absence of any authority or judicially enforceable standards 8 by which this judicial involvement can be judged, the matter remains within the prosecutor’s discretion. Justice Platkin acknowledged that the People’s actions – refusing to seek dismissal but declining to call witnesses – could be viewed as an effort by the People to exercise the power of nolle prosequi, which had been abolished. But even assuming that to be the case, permitting the court to direct a prosecution would entangle the court in a supervisory role requiring that it answer such questions as, “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.” Matter of Donnaruma v Carter, 41 Misc. 3d 195, 211 (Sup. Ct., Albany Co. 2013). The Appellate Division sustained Justice Platkin’s view on appeal to that court. It reasoned that Justice Platkin’s ruling did not deny respondent Carter the ability to exercise the contempt power; because the District Attorney had no obligation to call witnesses, the contempt power could not be used to compel the calling of witnesses. The Appellate Division further pointed out that even after commencement of a prosecution, the prosecutor is still in the best position to decide whether a pending prosecution should continue, but went on to point out 9 that a unilateral dismissal by a prosecutor was prohibited to prevent the abuse of power or some form of egregious conduct. Soares v. Carter, 113 A.D.3d at 993. That order of affirmance should likewise be sustained, for it recognizes correctly that the decision concerning which witnesses to call, whether to call witnesses at all, and what papers or applications are to be filed are determinations left to the executive branch in the person of the elected District Attorney. Preliminarily, it is of importance to identify what precisely is at issue in this case. It is not, as respondent Judge Carter would have it, about whether People v. Extale, 18 N.Y.3d 690 (2012), which reaffirmed the rule that a district attorney could not unilaterally dismiss an indictment, forces a court to dismiss a pending accusatory instrument other than an indictment when the district attorney has decided not to continue with the prosecution under that instrument (Reply Brief at 4-5). Indeed, this Court has explicitly left that question open. People v. Extale, 18 N.Y.3d at 695. Instead, at issue here is whether a member of the judicial branch has the power to direct an elected district attorney to conduct a prosecution in the manner the judge sees fit. The answer to that is self-evident; he cannot. As will be discussed below, this follows from the tripartite system that forms the government of this State and the concomitant separation of powers that our fundamental system of government demands. Moreover, permitting a court to direct the district 10 attorney to call particular witnesses risks forcing the district attorney to violate his obligations under the rules of professional conduct. Article III of the New York State Constitution vests the Senate and the Assembly with the legislative power of the State, while article IV vests the executive power in the Governor and article VI vests the court system with the judicial power (see NY CONST, Art III, § 1; Art IV, § 1; Art VI, § 1). These "separate grants of power to each of the coordinate branches of government" imply that each branch is to exercise power within a given sphere of authority. Stated succinctly, the separation of powers empowers the Legislature to make the critical policy decisions, while the executive branch's responsibility is to implement those policies. Saratoga County Chamber of Commerce v. Pataki, 100 N.Y.2d 801, 821- 822 (2003) (citations omitted). Of course, the District Attorney is “an officer of the executive branch of government,” People v. Leahy, 72 N.Y.2d 513 (1988), and the judicial branch of government may not encroach on the power of the executive branch, as represented specifically by the State's prosecutors, to ensure "that the laws are faithfully executed.” Forti v. New York State Ethics Comm’n, 75 N.Y.2d 596, 616-617 (1990) (citing People v. Di Falco, 44 N.Y.2d 482, 486 [1978]). In this case, respondent Judge Carter did precisely that. The judge directed petitioner Soares to summon witnesses at a suppression hearing on pain of being held in contempt. But as the prosecutor stated, “I don't believe that we are defying 11 a lawful order of the Court. We are here . . . . We'll be present in court. But I don't believe it is . . . . 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.” In other words, as the prosecutor intimated, the District Attorney has broad discretion in determining when and in what manner to prosecute a suspected offender and the court cannot force the District Attorney to do otherwise, be it with respect to conducting a trial or a suppression proceeding. To conclude otherwise is anathema to the state’s carefully constructed tripartite system of government. Indeed, the separation of the powers of the executive and the judiciary has been a hallmark of this State’s scheme of government, particularly as reflected in an application of County Law Section 701 which provides, under certain circumstances, for the appointment of a special district attorney. That provision of the County Law recognizes that there will be occasions on which the elected district attorney is unable to appear at a particular session of court or is disqualified from appearing in a particular case because of a conflict of interest. Should either of those occur, County Law Section 701 provides that a superior court in the county in which the district attorney finds himself or herself unable to act may appoint an attorney in the county or a district attorney in a limited number of nearby counties to serve as district attorney for the session or the case. But the power of the superior court to do so has been strictly 12 construed because “a court’s authority under County Law § 701 ‘to displace a duly elected [d]istrict [a]ttorney’ raises separation of power concerns.” Matter of Soares v. Herrick, 20 N.Y.3d 139, 144-145 (2012); People v. Leahy, 72 N.Y.2d 510 (1988). In other words, interference by a court in the exercise by the elected district attorney of the powers granted to that elected official must be considered against the New York State Constitution’s careful creation of three branches of government, each with its particular role in the administration of the State’s business. As a member of the executive branch, a district attorney is responsible, in the criminal justice sphere, for implementing those policies set out by the legislative branch and exercising appropriate discretion in choosing if, how, and when to prosecute offenders. It necessarily follows from this that, should a district attorney choose not to proceed with a particular prosecution, that choice merely reflects the executive’s discretionary decision about how to implement the policies that have been set out by the Legislature when it enacted the State’s criminal law. Any interference with this by a member of the judicial branch thus oversteps the line that delineates the obligations of each division of government. An examination of the authority to supersede an elected district attorney merely confirms the correctness of Justice Platkin’s ruling and its subsequent affirmance by the Appellate Division. As has been discussed, under certain 13 circumstances, a court may appoint a special district attorney to supplant an elected district attorney. The section of the County Law that provides that authority makes no provision whatever for permitting a court to enter a superseder order over the elected district attorney’s objection; it simply provides what is to occur if an elected district attorney is unavailable or is disqualified because of conflict. By contrast is Executive Law Section 63(2). That statute provides that The attorney-general shall …. [w]henever required by the governor, … manag[e] and conduc[t] … criminal actions or proceedings as shall be specified in such requirement; in which case the attorney-general … shall exercise all the powers and perform all the duties in respect of such actions or proceedings, which the district attorney would otherwise be authorized or required to exercise or perform; and in any of such actions or proceedings the district attorney shall only exercise such powers and perform such duties as are required of him by the attorney-general. Obviously, by its plain terms, the statute permits the Governor to step in and replace an elected district attorney and, as construed in Johnson v. Pataki, 91 N.Y.2d 214, 223-224 (1997), it neither limits the Governor's authority to supersede nor requires the Governor to explain that choice. This last provision is of particular significance to this discussion. In rejecting an attempt to analogize the appointment of a special district attorney in place of the elected district attorney pursuant to County Law Section 701 with the 14 superseder of such elected officer authorized by Executive Law Section 63(2), this Court observed that when the appointment is made pursuant to the Executive Law, “the whole dynamic is played out within the executive branch.” In contrast, appointments made pursuant to County Law Section 701 come from another branch of government – the judicial branch. Because of the encroachment on the executive’s authority that the County Law permits, it may be concluded that this is the very reason for the limitation of the court's appointive power to "a particular case." People v. Leahy, 72 N.Y.2d at 515. In other words, the gubernatorial appointment under the Executive Law does not impinge on separation of powers concerns while any judicial appointment under the County Law has precisely that impact. In light of the recognition that the authority permitting judicial intervention with a purely executive function is carefully circumscribed, the notion that a trial court may do so without any authority must be rejected. The separation of powers problem presented by respondent Judge Carter’s direction is rendered no less acute simply because the People had answered ready for trial, thus indicating their belief that there was legally sufficient evidence to prove the offenses with which respondents Donnaruma, Morrissey, Cantine, and Holmes were charged. It can be argued, of course, that by choosing not to proceed in a case in which they had already acknowledged their readiness, the People may themselves have crossed the line between the executive and legislative branches. 15 After all, it is the Legislature’s job to decide what the law is and the executive’s to enforce those laws; by declining to continue with a prosecution supported by the law and facts, the district attorney has arguably encroached on the Legislature’s determination as to what the law is. But the People’s decision not to proceed subsequent to an answer of readiness is not at all comparable to a court’s direction to a prosecutor to proceed. A prosecution is a dynamic enterprise; as the People learn more about the particular case, they are obliged to re-evaluate the case and enhance, mitigate, or dismiss the charges, depending on the nature of the information received. See generally Rules of Professional Conduct, Rule 3.8. Thus, for example, should the People discover evidence that renders it impossible for them to prove the defendant’s guilt beyond a reasonable doubt, they would be obliged to dismiss the charges and would have to do so, even if a court were to believe otherwise. Or, if the People were to conclude that a stop and seizure were inconsistent with constitutional norms, they would also be obliged to seek to remedy the matter by consenting to suppression. In other words, the People’s obligation with respect to any particular case and their decisions not to proceed are necessarily independent and not limited or framed by the actions of another branch of government. Id. Indeed, the People’s obligation in connection with any criminal prosecution has been characterized as that of “a minister of justice and not simply that of an 16 advocate.” Comment 1 to Rule 3.8. It is because of this overriding obligation, an obligation not shared by judicial personnel, as well as having the resources required to conduct the necessary investigation, that the district attorney is granted the unreviewable discretion to decide what cases to prosecute and what cases not to prosecute. It necessarily follows that the district attorney has the unreviewable discretion to decide how to proceed at any particular criminal proceeding. It is true, of course, that not all judicial involvement at trial oversteps the line between branches. But this type of involvement, far from stepping over the line dividing the branches of government, reinforces the role of the judiciary at trial. It has long been recognized that a trial judge has a vital role in clarifying confusing testimony and facilitating the orderly and expeditious progress of the trial. See, e.g., People v. Yut Wai Tom, 53 N.Y.2d 44, 57 (1981); People v. Jamison, 47 N.Y.2d 882, 883-884 (1979); People v. Moulton, 43 N.Y.2d 944 (1978); People v. De Jesus, 42 N.Y.2d 519 (1977). In other words, such involvement is an integral part of a judge’s role and thus, of the judicial branch of government. This is in sharp contrast to a prosecutor’s decision about whether and how to proceed in a particular case. It is interference in that decision, not assistance in the truth-seeking process, that crosses the line between the executive and judicial branches. 17 It is particularly difficult to understand the notion that a court can order the district attorney to call a witness at a proceeding over the district attorney’s resistance. Implicit in the notion that a court can force a district attorney to call any particular witness is the risk that the court may force a prosecutor to call a witness whom the prosecutor has decided is not worthy of belief or may, in fact, be lying. This cannot be the case. NY CONST., Art XIII, § 13 (b) and County Law Section 700 obligate the elected district attorney to prosecute all crimes committed in his or her jurisdiction. At the same time, however, because that elected official must be an attorney, the district attorney is bound by the rules and principles of professional ethics and subject to the internal processes of attorney discipline. Curry v. Hosley, 86 N.Y.2d 470, 473 (1995). The rules of professional conduct, however, mandate that an attorney not offer or use evidence that the lawyer knows to be false. And, if a lawyer, the lawyer's client, or a witness called by the lawyer has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. Rules of Professional Responsibility, Rule 3.3(a)(3). And, while a lawyer may offer the testimony of a defendant in a criminal matter that the lawyer reasonably believes is false, the Court of Appeals has held that under such a circumstance, a defense attorney's duty to zealously represent a 18 client must be circumscribed by his or her duty as an officer of the court to serve the truth-seeking function of the justice system. People v. De Pallo, 96 N.Y.2d 437, 441 (2001). That being the case, and in light of the ethical obligations of an attorney in this State, and in accordance with the jurisprudence of the United States Supreme Court, an attorney faced with a client who intends to commit perjury has the initial responsibility to attempt to dissuade the client from pursuing the unlawful course of action. Should the client insist on providing perjured testimony, counsel may seek to withdraw from the case. If counsel's request is denied, defense counsel, bound to honor a defendant's right to testify, should refrain from eliciting the testimony in traditional question-and-answer form and the defendant should be permitted to present the testimony in a narrative form. People v. Andrades, 4 N.Y.3d 355, 359-360 (2005). What this suggests is that a reversal in this case and any acceptance of the idea that a court can demand that the People call any particular witness at a hearing would place the prosecutor in an untenable position that is not demanded of defense counsel. But, of course, this simply cannot be correct. See People v. Savvides, 1 N.Y.2d 554 (1956) (prosecutor obliged to correct witness misstatements). It is certainly true that in Matter of Working Families Party v. Fisher, 23 N.Y.3d 539 (2014), this Court has rejected the notion that a district attorney’s 19 decision to step aside and seek a special district attorney pursuant to County Law Section 701 is not amenable judicial review once that appointment has been made. Put another way, Working Families Party can be read to hold that the exercise or non-exercise by a district attorney of his unique authority is subject to judicial supervision. That the appointment order in Working Families Party v. Fisher was held reviewable does not mean that the courts are in a supervisory position vis a vis the district attorney’s actions. Indeed, if anything, Working Families Party v. Fisher supports the view that it is the district attorney and the district attorney alone who shall exercise the prosecutorial function. In Working Families Party, the Richmond County District Attorney sought and obtained the appointment of a special district attorney for reasons contained in an application that remains sealed. The Party brought an Article 78 petition seeking to invalidate the appointment, contending, as relevant here, that there was an insufficient basis to justify the prosecutor’s self-recusal. Before this Court, respondent District Attorney contended that “a district attorney and his office are ‘disqualified’ if the district attorney himself so decides. A district attorney's decision to recuse himself should, in [respondent District Attorney]'s view, be unreviewable.” Id. at 546. This Court rejected that notion: “[t]o allow a district attorney to disqualify himself and his office in his sole discretion would value too 20 lightly the public interest in having prosecutorial duties performed, where possible, by the ‘constitutional officer chosen by the electorate’.” Id. The emphasis on the public interest in having prosecutorial duties performed by the “constitutional officer chosen by the electorate” is telling. That emphasis necessarily means that it is for the elected district attorney to exercise all the functions that serving as district attorney entails. This includes not only deciding whether to prosecute, but deciding when to cease a prosecution, and, as particularly relevant here, deciding whether or not to call witnesses at a pre-trial hearing (or, for that matter, at a trial). Moreover, the context in which Working Families Party v. Fisher arose makes plain its inapplicability to this proceeding. Working Families Party arose in the context of a challenge to the appointment of a special district attorney on the theory, in part, that the County Law authorized such appointment only upon the disqualification of a district attorney. In other words, a proper disqualification is a predicate for such an appointment; absent such basis, an appointment is invalid. But Working Families Party does not and cannot bar a district attorney from choosing not to prosecute a particular case because he believes he is disqualified and declining to seek appointment of a special district attorney, leaving a case unprosecuted or uninvestigated. After all, a district attorney’s discretion in this 21 regard is absolute and unchallengeable, reviewable only by the electors of his county who may decide against his re-election. It is difficult to understand respondent Carter’s contention that by choosing not to proceed at a suppression hearing, petitioner Soares has somehow elevated the executive over the judicial branch. Just like the judicial branch cannot force any prosecutorial action, a prosecutor cannot force any (discretionary) judicial action. At the same time, it is not the People’s obligation to seek a dismissal in a case in which they have no intention of proceeding; this is well illustrated by CPL § 180.85. CPL Section 180.85 provides a mechanism by which a felony complaint, pending in a local criminal court but which has not been the subject of any further action, may be resolved. It provides, as relevant here, “After arraignment of a defendant upon a felony complaint, other than a felony complaint charging an offense defined in section 125.10, 125.15, 125.20, 125.25, 125.26 or 125.27 of the penal law, either party or the local criminal court or superior court before which the action is pending, on its own motion, may move in accordance with the provisions of this section for an order terminating prosecution of the charges contained in such felony complaint on consent of the parties.” CPL § 180.85(1). In other words, either party or the court may seek dismissal of such a pending complaint. By authorizing a court to seek such resolution sua sponte, the 22 Legislature has made clear that it is not the People who must initiate dismissal of an accusatory instrument which they no longer wish to prosecute. This is, of course, not the only circumstance in which a court is authorized to seek dismissal of an accusatory instrument on its own motion. For example, CPL Section 170.40 authorizes dismissal of misdemeanor accusatory instruments in furtherance of justice, codification of the so-called Clayton motion. See People v. Clayton, 41 A.D.2d 204, 206 (2d Dep't 1973). Subsection 2 of the statute permits such a motion be made “by the people or of the court itself as well as upon that of the defendant.” Similarly, a court may seek dismissal of an accusatory instrument on CPL Section 30.30 grounds on its own motion as well. See, e.g., People v. Cook, 193 A.D.2d 366 (1st Dep't 1993). The court’s power to dismiss cases on its own motion makes clear that respondent Carter’s insistence that People v. Extale, supra, invalidates the grant of Article 78 relief here is ill-founded. According to respondent Carter, Extale prohibits a district attorney from dismissing a prosecution absent a court order and the district attorney’s decision not to call any witnesses at the suppression hearing is tantamount to a dismissal without a court order, the now illicit nolle prosequi. The short answer is that petitioner Soares’s decision not to call witnesses at the suppression hearing is by no stretch of the imagination tantamount to a dismissal. Rather, all that has occurred here is that petitioner District Attorney 23 Soares has simply failed to carry his burden at a suppression hearing. What ought to occur in such a circumstance is the granting of the suppression motion and dismissal of the accusatory instrument because the People are no longer able to carry their trial burden of proof. Indeed, this is precisely what occurred in People v. Carabeteas-Shook, cited by respondent Carter. In Carabeteas-Shook, the District Attorney chose not to appear at a bench trial. As a result, rather than dismissing the case because the District Attorney did not appear, the court concluded that the People had failed to carry their burden of proof and thus, the court was constrained to acquit. Here, respondent Carter could have done the same thing; rather than attempt to force the District Attorney to call witnesses at the suppression hearing, the court could simply have granted the suppression motion because the People had not carried their burden. At that point, respondent Carter could have entertained and granted a motion to dismiss brought pursuant to CPL Section 170.30 (1)(f) which authorizes dismissal if there exists legal impediment to conviction of the defendant for the offense charged. After all, once a field test of a controlled substance has been conclusively refuted, CPL Section 210.20[1][h] could authorize dismissal of drug charges on the ground that there exists a "legal impediment to conviction of the defendant for the offense charged.” People v. Swamp, 84 N.Y.2d 725, 732 (1995). CPL Section 170.30(1)(f) is, of course, the criminal court parallel to Section 210.20(1)(h) and 24 certainly, the exclusion of evidence needed to prove a defendant’s guilt creates just such a legal impediment. Finally, respondent Carter further suggests that if petitioner Soares’ refusal to present evidence at the suppression hearing is sustained by an affirmance, there is a likelihood of “backroom deals that could allow prosecutors to circumvent the express intention of the Legislature to keep the reasons for dismissals on the record and subject to public scrutiny and evaluation, thereby depriving voters of that ballot-box veto” (Reply Brief at 10). But even assuming that a district attorney chooses not to present evidence at a hearing or trial for some unknown nefarious reason, that district attorney’s conduct is subject to review by the voters, who can turn him out of office in the event they conclude that he may be engaging in the very conduct respondent Carter decries or for no reason at all. And, more importantly, apart from the voters, it is the governor who is empowered to remove a district attorney for misconduct. N.Y. CONST. Art. XIII, §13 (b). What this means, of course, is that the misconduct about which respondent Carter is so fearful has a remedy; it just is not a judicial one. Hence, the notion that the voters are denied any protection from a venal or dishonest district attorney is simply wrong. 25 * * * * * In the end, the tripartite system of government, the hallmark of the framework by which New York State has chosen to order its affairs, commands affirmance here. The importance of maintaining a line between the distinct branches of government cannot be overstated; the distribution of functions between these branches “avoids excessive concentration of power in any one branch or in any one person. Where power is delegated to one person, the power is always guided and limited by standards. . . . Without such standards there is no government of law, but only government by men left to set their own standards, with resultant authoritarian possibilities.” Rapp v. Carey, 44 N.Y.2d 157, 162 (1978). Here, respondent Judge Carter has interfered in the very essence of the prosecutor’s role – deciding whether or how to go forward – an arrogation of power that crosses the line between the proper roles of the judiciary and the executive. It cannot be countenanced. 26 CONCLUSION The order of affirmance should itself be affirmed. Dated: February 6, 2015 Respectfully submitted, FRANK A. SEDITA, III District Attorney, Erie County President, District Attorneys Association of the State of New York c/o Richmond County District Attorney 130 Stuyvesant Place Staten Island, New York 10301 MORRIE I. KLEINBART Assistant District Attorney/Richmond County TAMMY J. SMILEY Assistant District Attorney/Nassau County Counsel for Amicus Curiae 27