In the Matter of P. David Soares,, Respondent,v.William A. Carter,, Appellant, Colin Donnaruma et al., Respondents.BriefN.Y.March 23, 2015Time requested: 10 minutes To Be Argued by James C. Knox, Esq. ~onrtof~pp£af~ FOR THE STATE OF NEW YORK IN THE MATTER OF THE APPLICATION OF P. DAVID SOARES, DISTRICT ATTORNEY FOR 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 DONN ARUMA, DANIEL MORRISSEY, ERIC CANTINE AND TIMOTHY HOLMES, Responden~-Responden~. REPLY BRIEF FOR RESPONDENT -APPELLANT E. STEWART JONES, PLLC James C. Knox, Esq. Attorney for Respondent-Appellant 28 Second Street Troy, New York 12180 Telephone: 518-274-5820 Facsimile: 518-274-5875 TABLE OF CONTENTS Table of Authorities .................................................................................................. 2 I. PETITIONER MISCONSTRUES RESPONDENT'S POSITION ..................... 3 II. PETITIONER MISCHARACTERIZES HIS OWN POSITION ........................ 4 Conclusion ............................................................................................................... 11 TABLE OF AUTHORITIES Statutes Criminal Procedure Law § 170.40 ........................................................................ 7, 8 Criminal Procedure Law§ 210.40 ........................................................................ 7, 8 State Cases LaRocca v Lane, 37 NY2d 575 (1975), cert denied 424 us 968 (1976) .......................................................................................... 3 People v Extale, 18 NY3d 690 (2012) .................................................................. 5, 7 People v Carabateas-Shook, 45 Mise 3d 1211(A), 2014 NY Slip Op 51538(U) (Kinderhook Just Ct, October 15, 2014, Dellehunt, J.) .................. 9 People v Reardon, 43 Mise 3d 1219(A), 2014 NY Slip Op 5071(U) (2014) (Kinderhook Just Ct, April29, 2014, Dellehunt, J.) ......................... 10 2 I. PETITIONER MISCONSTRUES RESPONDENT'S POSITION. There can be no honest debate about what the facts are in this matter, and Respondent does not base his appeal upon "his own alternate set of facts" (Petitioner-Respondent's Brief, at 29). There can be no dispute about the facts, only about their import. The Record, stipulated to by all parties, contains the written submissions of the parties, various orders, and the transcripts of two proceedings, one in City Court and one in Supreme Court. It is Petitioner's blinkered view of his conduct during months of proceedings in City Court prior to the suppression hearing, however, which provides an improperly filtered set of facts. Just because the CPL does not contain a provision stating that a district attorney must call witnesses at a suppression hearing does not mean that, as was the case here, a district attorney cannot take a series of successive positions such that his refusal to call witnesses at a suppression hearing is contemptuous. However, for this Court to find that Supreme Court erred in concluding that a writ of prohibition lies in this case, it need not find that Petitioner had indisputably placed himself in that unenviable position, but it need only determine that Respondent's conclusion that Petitioner had done so was not "so serious an excess of power inconvertibly justifying and requiring summary correction" (LaRocca v Lane, 37 NY2d 575, 580 [1975], cert denied 424 US 968 [1976]). 3 Petitioner carefully passes over the representations of the criminal defendants that Petitioner had first verbally assured the defendants that he would not prosecute their cases (Respondents-Respondents' Brief, at 5), and glosses over his thrice repeated correspondence to respondent stating his intention to not proceed in prosecuting the defendants' cases [R: 1 04-1 06]. Those were no ordinary communiques, nor were they motions, but Petitioner plainly believed they had some legal effect- the effect of terminating the prosecutions of defendants. Nor does Petitioner bother to discuss the fact that at every tum, Respondent's response to Petitioner was clear and unwavering: pick a means of disposition authorized under the Criminal Procedure Law of this State. Petitioner, however, contemptuously refused to do so -not solely at the conclusion of the suppression hearing, but throughout the course of the months preceding that moment, which itself represented the culmination of a course that Petitioner had charted and inexorably held to, despite Respondent's repeated recriminations, exhortations and supplications to Petitioner to do something else: something other than to refuse to do anything. II. PETITIONER MISCHARACTERIZES HIS OWN POSITION. Petitioner contends that he makes no claim that the People may unilaterally dismiss these criminal prosecutions, "but by not taking action they constrain [respondent] to do so" (Petitioner-Respondent's Brief, at 37). The problem with 4 this argument- which is the selfsame flaw that imbues the Appellate Division decision - is that it is of course a distinction without a difference, as there is no space between a power to unilaterally dismiss a case and a power to unilaterally compel a court to do the same thing. Petitioner's position is an exercise in cognitive dissonance: while arguing on the one hand that each branch of government should be free from interference by either of the others (Petitioner-Respondent's Brief, at 33), Petitioner simultaneously asks this Court to support a ruling of the Appellate Division that has the effect of elevating the Executive branch above the Judicial branch, along the way doing violence to the Criminal Procedure Law enacted by the Legislative branch. Although Petitioner pretends that "[t]he question left open in Extale is not presented by this case" (Petitioner-Respondent's Brief, at 32) (18 NY3d 690 [2012] ["Nor need we address a situation in which the prosecutor wants to dismiss a count of an accusatory instrument that did not originate with a grand jury"]), the ruling sought by him here would answer the question affirmatively, and would have the effect of authorizing the use of nolle prosequi in cases not brought by indictment. This produces an anomalous result. The statutory language that was critical in People v Extale is the same statutory language that is at issue in this case. It is respectfully submitted that just as "[ n ]othing in the text or legislative history of the 5 Criminal Procedure Law expresses any intention to restore to prosecutors the unilateral right to refuse to proceed on a count of a grand jury indictment" (id. at 695), neither does it express any intention to restore such right to any other lawfully commenced prosecution. While recognizing that there are clearly differences between what Petitioner has glibly described as the actions of the "well-meaning Patrolman" -who initiates a criminal charge in a local court by information or misdemeanor complaint when he or another has firsthand knowledge that a crime has been committed - and an indictment brought by a grand jury- which brings a charge only upon the production of evidence sufficient to establish reasonable cause to believe a crime has been committed- the similarities between the two types of prosecutions outweigh the differences to an extent such that it is unreasonable to provide unbridled discretion to district attorneys to dismiss in the first instance and not the second. Both types of prosecutions have victims, whether individuals or society in general or both, who differ mainly in the degree of harm they have allegedly suffered at the hands of the person or persons alleged to have committed the relevant criminal acts. Both types are prosecuted for the same jurisprudential reasons of deterrence, retribution, rehabilitation, incapacitation and restoration. Both require non-hearsay evidentiary support to be commenced. As society's 6 interest in both types of prosecutions is the same, with potential outcomes differing only in matter of degree, there is no substantive qualitative difference that would justify a means of concluding local court charges expressly outlawed by the progenitor of the Criminal Procedure Law. Petitioner sees some difference, however, and now reveals his desire to have the power to employ nolle prosequi in non-grand jury prosecutions, a power proscribed him by clearly express legislative intent entwined in a comprehensive statutory schema. People v Extale makes clear that, as a superseding alternative to nolle prosequi, the Legislature provided "what is now CPL 210.40 (3), which says: 'An order dismissing an indictment in the interest of justice may be issued upon motion of the people or of the court itself as well as upon that of the defendant. Upon issuing such an order, the court must set forth its reasons therefor upon the record" (id., at 694). Of course, with regard to typical local court accusatory instruments, CPL 170.40 (2) contains essentially identical language: "An order dismissing an [information, a simplified traffic information, a prosecutor's information or a misdemeanor complaint, or any count thereof] in the interest of justice may be issued upon motion of the people or of the court itself as well as upon that of the defendant. Upon issuing such an order, the court must set forth its reasons therefor upon the record." The import of the Legislature's intent evidenced by its use of parallel schemes must not be lost. Clearly the Legislature, in abolishing nolle prosequi, did not carve out an exception for informations or misdemeanor complaints, but sought 7 to ensure that, no matter the charging instrument, dismissal should occur through motion practice sufficient to provide a reason or reasons that could be set forth on the record. The authority of the People to make a motion to dismiss in the interest of justice under CPL 170.40 is mere statutory superfluity if a letter of non-intent is sufficient to compel a court to dismiss a misdemeanor complaint or information. The dispute between Petitioner and Respondent has its origin in the series of written statements which Petitioner filed in City Court stating his intent not to prosecute. These are quintessentially nolle prosequi statements, and despite Petitioner's express belief that "[s]uch authority could reasonably be exercised ... where both prosecution and defendant agree that a charge should not go forward" (Petitioner-Respondent's Brief, at 36)- and his implicit contention that he should be allowed to wield such authority -the Legislature has clearly deemed it otherwise. Petitioner may be right that such authority could be reasonably exercised, but it could also be easily abused. The contention that such authority could be reasonably exercised contains within it no inherent logical stopping point to suggest that there is something precluding such a power from being "reasonably exercised" as to grand jury charges. Petitioner cannot reasonably suggest that the Legislature, in abolishing nolle prosequi and in creating CPL 210.40 and CPL 170.40, did not contemplate that such a power could, under certain circumstances, reasonably be exercised as to 8 either prosecutions by indictment or prosecutions by misdemeanor information or complaint, but the possibility of reasonability was not the motivation beyond the abolition of the power; instead it was the probability of abuse. But if the Appellate Division decision herein is upheld, then Petitioner is granted that authority in contravention of the Legislature's intent. The answer to the question "What Next?" which Petitioner poses is important, and it is determinative. If district attorneys are allowed to wield the kind of authority that allows them to dismiss charges with absolutely no explanation (or review by a coequal branch of government), the potential for abuse quickly reveals itself. For example, in a recent case in Columbia County, New York, a defendant was alleged to have assaulted and injured another, who reportedly required repeated dental treatments to repair the damage occasioned by the assault, but the district attorney closed his file and declined, without further explanation, to appear, to move to dismiss, to prosecute or to take in fact any action in the matter, resulting in the trial court scheduling a trial, at which the People did not appear, necessitating a dismissal of the criminal complaint (see People v Carabateas-Shook, 45 Mise 3d 1211 [A], 2014 NY Slip Op 51538 [U] [Kinderhook Just Ct, October 15, 2014, Dellehunt, J.]). Whether justice was served is a question that may never be answered, given that particular district attorney's refusal to set forth any basis for 9 declining to prosecute, potentially leaving a victim without recompense or even explanation. Petitioner asks "What next?" but the question has already been answered. In People v Reardon, as noted in Respondent's principal brief, upon the authority of the Appellate Division decision in this matter, the People refused to give their reasons for declining to prosecute in open court: "TheDA's offer to provide a reason for declining to prosecute in camera is incongruous. Defendant shares the DA's desire to have the case dismissed, leaving the Court to question whether an in camera review is designed to shield the rationale for the DA's position from the public, and thereby avoid any possible repercussions at the ballot box. Even a plea outside the bounds of Vehicle and Traffic Law § 1192 requires a disclosure on the record of the rationale for diverging from the statutory framework set up by the Legislature" ( 43 Misc3d 1219 [A] [2014]) at *2, 2014 NY Slip Op 5071[U] [Kinderhook Just Ct, April29, 2014, Dellehunt, J.] [internal citations omitted]). What comes next, then, are potentially backroom deals that could allow prosecutors to circumvent the express intention of the Legislature to keep the reason for dismissals on the record and subject to public scrutiny and evaluation, thereby depriving voters of that ballot-box veto which Petitioner holds up as the unassailable bulwark against prosecutorial corruption. However, this Court can conclude that the writ of prohibition does not lie under the facts of this case, and remit these matters for further proceedings, where it may be expected that one or both of the parties will make a formal motion to 10 dismiss in the interest of justice. Such should have been the first step pursued by either the People or defendants, who instead sought first to principally rely on the People's declination to prosecute as a lawful basis to compel outright dismissal. In the end, it was Petitioner's deliberate, steadfast determination- in clear derogation of the trial court's authority to regulate the means of proceedings before it- to repeatedly refuse to pursue such a motion, and instead to appear at a scheduled suppression hearing and refuse to participate, that prompted Respondent to threaten contempt. CONCLUSION For the foregoing reasons, respondent respectfully requests that the judgment of Supreme Court be REVERSED, and the Petition be, in all respects, DENIED and DISMISSED. Dated: November 11, 2014 11 Respectfully submitted, J~ S C. KNOX, ES E. STEWART JONE , PLLC Attorney for Respondent-Appellant Office and P.O. Address 28 Second Street Troy, New York 12180
