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The People consented to an adjournment not assuming prosecution of the matter i


On 8 February 1991, an altercation occurred between the defendant and her landlord at the latter’s house where both parties lived. On that date, defendant’s landlord was under arrest by the police and charged in a felony complaint with assaulting the defendant. At her arraignment, defendant’s landlord was assigned Legal Aid counsel and released on her own recognizance. The case was adjourned for Grand Jury action. Shortly thereafter, defendant’s landlord went to the New York City Criminal Court’s Summons Part at 346 Broadway in New York County where a clerk prepared a misdemeanor complaint on her behalf charging defendant with the crimes of Assault in the third degree (Penal Law § 120.00(1)), Criminal Mischief in the fourth degree (PL § 145.00(1)), Menacing (PL § 120.15) and Harassment as a violation (PL § 240.25(5))–all of which was allegedly based on the same February 8th incident for which defendant’s landlord herself had been previously charged.

Next, defendant’s landlord appeared before a judge of the Criminal Court in Kings County, swore to the truth of her complaint and received a summons to serve on defendant to secure her appearance in this Court. The judge who issued the summons for the defendant was unaware that defendant’s landlord had already been arrested for the very same conduct of which she accused defendant. Note that the summons clerk’s intake sheet merely indicates that defendant’s landlord was referred to the summons part by her attorney and that she refused mediation.

The defendant appeared in court with her attorney after having been served with summons and was arraigned. Defendant’s landlord and her attorney were present at the defendant’s arraignment. At arraignment, the court was advised that defendant’s landlord has been indicted by a Kings County grand jury for Assault in the second degree and Criminal Possession of a Weapon in the fourth degree for allegedly assaulting the defendant on 8 February 1991. Since this was the first time the District Attorney’s Office had an opportunity to review the summons initiated case in light of the pending indictment, the court inquired if the People were going to assume prosecution of the defendant. Counsel for defendant’s landlord submitted a motion and affirmation requesting that the District Attorney’s Office not be permitted to dismiss this prosecution and for an adjournment to allow her to move in Supreme Court for the appointment of a special prosecutor.

The People consented to an adjournment not assuming prosecution of the matter in the present and in the future and that they have no position concerning the appointment of a special prosecutor.

Consequently, the case was adjourned again but this time for action on defendant’s landlord’s motion for a special prosecutor. Defendant’s counsel was directed to file all appropriate motions by the adjourned date. On that date, however, defendant’s landlord’s attorney reported that her motion for a special prosecutor was denied by Supreme Court. Meanwhile, defendant’s counsel filed a written motion to dismiss pursuant to CPL § 170.30, subd. 1(f). Specifically, defendant argues that if defendant’s landlord is allowed to prosecute, the defendant will be deprived of the many constitutional safeguards to a fair trial that other defendants who are prosecuted by the District Attorney enjoy.

The defendant asserts that Section 50 of the New York City Criminal Court Act is unconstitutional as applied to her since a private prosecution based on this statute results in a violation of the Equal Protection and Due Process clauses of the Fourteenth Amendment.

Counsel for defendant’s landlord acknowledged it would be improper for her to assume the prosecutor’s role by responding to defendant’s motion to dismiss. Since the defendant challenged the constitutionality of Section 50 of the New York City Criminal Court Act, this court notified the Attorney General’s Office to allow it an opportunity to intervene as stated in Executive Law § 71 and CPLR § 1012(b). The Attorney General’s Office has declined, in writing, to intervene at this stage of the proceedings and this court has therefore addressed the merits of the defendant’s motion.

At issue is whether a private prosecution for a crime, after the District Attorney’s Office declines to prosecute, constitutes a violation of the defendant’s rights to Due Process and Equal Protection, and, consequently, whether section 50 of the New York City Criminal Court Act, as applied here, is unconstitutional.

The court ruled that while numerous decisions describe the summons and complaint process authorized by Section 50 of the New York City Criminal Court Act (NYCCCA) and the operation of the Summons All Purpose Part (SAP) in the Criminal Courts of the City of New York, as contained in People v. Vial (1986) and People v. Vlasto (1974), the court found no published decision examining the statute itself.

NYCCCA § 50 reads as follows:

“Complaints; not to be prepared in courtroom. Provision shall be made at all times in each part of the court in which a judge is sitting as a magistrate whereby the clerk, the clerk’s assistants or other employees whose duty it is to prepare complaints shall have proper accommodations and the necessary room or rooms separate from but convenient to the room in which the court is held, and therein shall be at all times conspicuously posted a notice legibly printed in English, Spanish, Italian and Yiddish, respectively, and such other language as a rule or order of court shall prescribe, to the effect that any person to whom permission is refused to make and verify a complaint and who is thereby aggrieved will be heard upon application to the judge in person before the closing of the pending session of the court. It shall be the duty of each such judge before opening and again before closing a session to cause to be intelligibly announced to all persons in and about his courtroom that the court will then and there hear all complaints which have not been taken by the complaint clerk.”

The Commission found that magistrate courts as they existed before 1910 were noisy, overcrowded and lacked the semblance of any judicial procedure, thereby, making the defendant unable to hear the proceedings against him. It then recommended reorganization of the courthouse facilities including “provision for the complaint clerks in a room separate from the courtroom.” All of these measures were instituted to “enable the defendant in all cases to have the same opportunity to be heard as the complainant.”

The statute will clearly benefit the defendant at a time all complaints are sworn to before the court here had no right to counsel.

NYCCCA § 50 and the summons and complaint process it authorizes was critically scrutinized in the Report of the Task Force on the Civilian-Initiated Complaint Process in the New York City Criminal Court (Task Force). Describing Section 50 as an “antiquated provision,” the Task Force report recommended its repeal. The report found the existing system to be deficient in almost every respect.

The report noted that lack of prosecutorial involvement erodes confidence in the criminal justice system.

The decision to prosecute must rest with professional assistants of duly elected prosecutors who can properly evaluate the merits of a case and who represent the interests of the People of the State of New York. Either a case warrants prosecution or it should not be brought in Criminal Court. The alternative is to allow any individual to use a criminal case to pursue his or her own personal aims. This practice undermines justice and the appearance of justice and it erodes the public’s confidence in the criminal justice system.

Furthermore, the existing system diminishes the authority and credibility of the Judiciary.

In the absence of prosecutors and defense attorneys on summons cases, judges often assume these functions, thus causing, at the very least, an appearance of impropriety. Many judges limit the sanctions they impose to convictions for violations and non-jail sentences even if they believe a defendant is guilty of a crime and that a sentence of incarceration might be appropriate. This phenomenon tends to delay and trivialize these cases thereby undermining the credibility of the judiciary and the entire criminal process.

The custom of allowing individuals to prosecute in the name of the state has its origins in the English Common Law. However, in New York, since the Constitutional Convention of 1777, the Attorney General was the chief law enforcement officer responsible for the nineteenth century; the office of the District Attorney was created by statute. Since then, the District Attorney has been charged with the duty to prosecute crimes and offenses. A criminal conviction for assault in the Court of Special Sessions in Orange County need not be reversed solely on the reason of a lay complaining witness conducted the prosecution.

In assessing the fairness of the trial, the Read court (Read v. Sacco, 1975) emphasized the defendant’s failure to object to the prosecution by the complainant’s civil attorney. It disapproved of the practice of an attorney representing a plaintiff in a civil action also acting as a prosecutor of the defendant in a criminal proceeding arising out of the same subject matter. The Read court warned, “the conflicts implicit in such a case may create a course of conduct prejudicial to the defendant and violate the dictates of due process.” Nonetheless, the Appellate Division ruled that prosecution by a private attorney did not violate due process under the circumstances in that case.

The private prosecutor is always an attorney who merely assists the public prosecutor and it is the public prosecutor who actually remains in control of the case. Being so, he is held to the same standard as the public prosecutor.

In addressing defendant’s due process and equal protection claims, analysis must begin with the application of Van Sickle’s standard. Thus, defendant’s landlord “must abide by the same rules of fairness and of law which would bind a public law officer. The primordial concern is the fact that defendant here rigorously objects to her prosecution by defendant’s landlord. Moreover, the court recognizes that the “rules of fairness and of law” applicable to a public prosecutor have multiplied rapidly since the Van Sickle decision, The court thereby imposes on the prosecutor the duty to turn over evidence favorable to the accused on the issue of either guilt or punishment. Under the circumstances of this case, all aspects of defendant’s landlord felony prosecution constitute Brady material to which the defendant is entitled. Begging the rhetorical question of who advises defendant’s landlord as to what her prosecutorial obligations are, neither this court nor she, as a private individual, are entitled to access to the District Attorney’s file. In the same vein, unless defendant’s landlord advised the court or defense counsel, no one would know if she filed a complaint report with the police regarding the February 8th incident, for which failure to turn over such report to the defendant would constitute a Rosario violation and necessitate automatic reversal of any conviction obtained as enunciated in the case of People v. Ranghelle.

Not having spoken to the defendants landlord directly but only through her counsel on her felony case, the only indication this court has concerning her position on this prosecution is, not surprisingly, that she avidly desires to prosecute! However, as defendant suggests in her motion to dismiss and this court so finds, “the complaint in this case is a tactic to delay prosecution and to pressure defendant into withdrawing her charges of Assault” and the conflicts implicit in this private prosecution violate due process.

Defendant’s equal protection argument rests on the premise that she is entitled to prosecution by a disinterested public prosecutor, and not an interested private one. In People v. Zimmer (1980), the Court of Appeals described the pivotal role of the public prosecutor in the criminal justice system as follows:

Unlike other participants in the traditional common-law adversarial process, whose more singular function is to protect and advance the rights of one side, a District Attorney carries an additional and more sensitive burden. It is not enough for him to be intent on the prosecution of his case. Granted that his paramount obligation is to the public, he must never lose sight of the fact that a defendant, as an integral member of the body politic, is entitled to a full measure of fairness. Put another way, his mission is not so much to convict as it is to achieve a just result.

The Zimmer court dismissed an indictment obtained by a District Attorney against a defendant who had allegedly stolen monies from a corporation of which the District Attorney was both a stockholder and counsel. The court ruled it was enough that a conflict of interest had been shown without a showing of actual prejudice to the defendant. Echoing Ganger v. Peyton which it cited approvingly, the Court of Appeals observed:

Aside from his financial interest as a stockholder, as counsel to the corporation the District Attorney was its spokesman in legal matters, of which this was one. Assuming he intended to be as fair and objective as fair could be, in presenting this evidence where did his role as partisan corporate attorney end and where did that of nonpartisan District Attorney begin? At what point was he serving which of his two masters? To put the questions is to state the problem, a problem instinct with due process implications.

Accordingly, since the Zimmer court dictates that a public prosecutor must be disinterested, continued prosecution of the defendant here, whose interest in the prosecution is beyond peradventure, would violate both the defendant’s due process and equal protection guarantees.

On the Policy Argument:

Notably, both the Court of Appeals in the Van Sickle case and the Appellate Division in Read v. Sacco emphasized that because many county District Attorneys’ offices were insufficiently staffed to appear at all the prosecutions conducted in the lower courts, complainants were forced to handle the prosecutions themselves or hire private attorneys for that purpose. However, in each instance, the courts construed the scope of Section 700(1) of the County Law. That statute is state-wide in scope and covers both full and part-time District Attorneys with both large and small offices. By contrast, private prosecutions commenced pursuant to NYCCCA § 50 may be construed with respect only to County Law § 927, and not to County Law § 700. This is because § 927 imposes the duty to prosecute only on the District Attorneys of the five counties that comprise New York City–the same jurisdiction of the Criminal Court Act. These counties have full-time District Attorneys whose full-time staffs, except for Richmond County, are comprised of literally hundreds of Assistant District Attorneys who staff all the lower courts in their respective counties. Accordingly, the policy argument for allowing private prosecutions in Van Sickle is absent here.

In conclusion:

NYCCCA § 50 clearly allows a private citizen to set in motion a prosecution for a crime unbeknownst to any prosecuting official or the accused. While this statute may have been enacted for the benefit of the defendant, the previously discussed findings of the Task Force clearly demonstrate that Section 50 no longer serves its original purpose. More to the point, Section 50, as applied here, permits a private prosecution of a crime by a citizen complainant after the local District Attorney’s office has declined to accept prosecution. This Court can find no other jurisdiction which permits such a procedure. Moreover, the only analogous private prosecutions in other jurisdictions are those where private attorneys merely assist the public prosecutors.

This critical distinction between New York’s private prosecution and those of other jurisdictions is compelling. The public prosecutor in other jurisdictions accepts prosecution of the cases and controls their destiny. Indeed, in contrast to the procedure authorized by Section 50, private prosecutors outside of New York do not even have the ability to initiate the prosecution.

Prosecution by a disinterested prosecutor is a fundamental aspect of due process that this defendant would be deprived of if this private prosecution is allowed to continue. Indeed, CPL § 1.20(1) provides:

Every accusatory instrument, regardless of the person designated therein as accuser, constitutes an accusation on behalf of the state as plaintiff and must be entitled “the People of the State of New York” against a designated person, known as the defendant.

The phrase “the People of the State of New York” embodies the concept that it is the state, through its public officials, which seeks to do justice on behalf of all of its citizens–both the victims and accused. Therefore, a prosecution for a crime by a private citizen pursuant to NYCCCA § 50 after the People’s representative–the local District Attorney, has declined to prosecute, makes a mockery of the criminal justice system by attempting to utilize the court for private ends.

The court is well aware of the strong presumption that legislative enactments are constitutional. Nonetheless, the foregoing analysis clearly establishes that NYCCCA § 50, as applied here, is unconstitutional and violative of the Due Process and Equal Protection Clauses of the U.S. Constitution’s Fourteenth Amendment.

Going back to the issue of the case at hand, i.e., the constitutionality of a state criminal statute, the state of New York has since historically provided broader protections in the area of fairness of criminal proceedings than that accorded by the federal constitution and Section 50, as applied in this case, violates the Due Process Clause of the State Constitution.

Accordingly, defendant’s motion to dismiss is granted.

Kings County Criminal Lawyers, Kings County Assault Lawyers and Stephen Bilkis and Associates advocate protection of every individual’s constitutional right. If you are faced with the same problem as the case discussed above, call us at our toll free number or visit us at our offices. A team of accommodating and helpful lawyers awaits you.

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