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Order to Show Cause


The petition before this Court arises in the wake of the dismissal of the referenced indictment returned in Nassau County upon a grand jury presentation by the Office of the Nassau County District Attorney. Both the “Office” and the Attorney are respondents here. The petitioners are the named defendants under the indictment which charged one count of grand larceny in the second degree under Penal Law 155.40(1). Following arraignment, each petitioner, as ‘ defendant, submitted an omnibus motion before the Nassau County Court, the Honorable Justice, presiding.

A Nassau County Criminal attorney said that the Justice decided defendants’ motion by an order dated October 22. 2010. which was entered on October 26, 2010, finding that the District Attorney indeed lacked the authority to appoint the prosecutor who presented the subject charges to the grand jury.

On appeal by the People, the Appellate Division. Second Department, on October 4.2011. affirmed the Order of the Justice. Thereafter, the People sought leave of the Court of Appeals to appeal the Order of the Appellate Division, which application was denied by Order dated March 30, 2012.

Between the orders of the Appellate Division and the Court of Appeals, on October 21.2011. the petitioners here tiled a civil action against respondents here, and others, in the United States District Court for the Eastern District of New York.

The petition presents three proffered grounds for relief in the form of a writ of prohibition against further presentment of the underlying criminal prosecution: that their right to a speedy trial, pursuant to CPL 30.30 and the Sixth Amendment to the United States Constitution would be violated; that such a prosecution would be beyond the geographic jurisdiction of the Nassau County District Attorney: and, that re-presentment of the matters underlying the indictment previously’ dismissed by Order of the Justice would violate the mandate of CPL 190.75 (3) that when an indicted charge has been dismissed it may not again be submitted to a grand jury unless authorized by the Court in its discretion, and since the Justice’s discretion was granted on a conditional basis, and the condition not having been met. re-presentment is barred.

The Order to Show Cause which initiated this proceeding contained a stay restraining respondents from further prosecutorial actions in regard to the petitioners on the underlying criminal matter, That stay has remained in effect pending this Court’s order.

The Court of Appeals has often specified the considerations to be made with regard to the appropriateness of relief by Writ of Prohibition. “It is familiar law that an article 78 proceeding in the nature of prohibition will not lie to correct procedural or substantive errors of law” Rather, 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 of which it has jurisdiction'”

The initial question here is whether the remedy of prohibition under CPLR article 78 is available to petitioners to assert a right to bar further prosecution. In the rubric of this Court’s decision these principles are applied to petitioners’ proffered grounds as noted above.

Petitioners claim a clear legal right to the benefit of the law of the Slate of New York, as it is codified in the Criminal Procedure Law at § 195.75(3), which, generally, provides that when a grand jury charge has been dismissed, it may not again be submitted to a grand jury unless the court in its discretion authorizes or directs the prosecution to resubmit the charge to the same or another grand jury.

Petitioners conclude that more than 45 days have expired since the Order of October 22, 2010. and therefore the respondents’ leave to re-present has lost its effect. Thereby, the mandate of CPL 195.75(3) that the DWI charge may not again be submitted, protects petitioners from farther prosecution on the Tacts and circumstances underlying the dismissed indictment.

The import of the petition is that, were the respondents to proceed to re-present the matter, they would be acting in excess of their authority and threatening a clear legal right of the petitioners. The act of prosecuting the petitioners would be an act in excess of power rather than a mere error of law. and prohibition would be an available remedy.

In assessing petitioners “clear right” to prohibitive relief in this special proceeding, it is necessary for this Court of ascertain the law of the criminal case from which the instant controversy arises. In that regard, to the extent that petitioners rely on the County Court’s dismissal order, the Appellate Division’s order is the final say. It is the law of the criminal case.

The consequence to the instant matter is that Justice Berkowitz’s Order is entitled to full force and effect upon the appellate court’s holding that “Ordered that the order is affirmed.” no modification of the lower court’s order having been provided.

Respondents argue that the order restricting the time-frame for re-presentment “runs counter to applicable law and is, therefore, not enforceable.” They cite CPL 210.20(4), for the proposition that a court has discretion to authorize the People to resubmit but insist that the discretion afforded to the court is only whether a matter may be resubmitted to the same or another grand jury, so that a court may not exercise the further discretion of setting a time frame.

The Court notes here that respondents were free to have addressed the Second Department in the appeal of the criminal ease with the issue they present here. They did not. The Appellate Division was free to review any issue of law involving error or defect in the criminal court proceeding which may have adversely affected the appellants (respondents here).

Thus, on this ground, petitioners have established a clear legal right to relief in the nature of prohibition. The Court must then also assess whether its discretion should be employed to grant the writ.

Prohibition is appropriate when, on presentation of a clear cut question of prosecutorial jurisdiction, there is no reason why a petitioner should have to await a possible conviction in order to vindicate his position. This is particularly so where, as here, one of the petitioners, is an attorney who would be automatically disbarred upon conviction.

Prohibition does not issue where the grievance can be redressed by ordinary proceedings at law or in equity, such as by appeal, motion or other ordinary applications, but, if the appeal, motion or other applications would be inadequate to prevent the harm and prohibition would furnish a more complete and efficacious remedy, it may be employed even though other methods of redress are technically available.

The Court determines that its discretion is properly employed here to enter a writ of prohibition upon the petition, barring respondents from re-presenting to a grand jury the matters underlying Nassau County indictment number 313N-10, as previously dismissed by order of the Nassau County Court dated October 22, 2010.

While complete relief is granted to petitioners by the above finding, consideration of the remaining grounds put forth by the petitioners is appropriate. The facts as alleged in the petition, as they pertain to respondents” alleged conflict of interest, are. if true, profoundly troubling. However, there is no factual determination before this Court Which would enable an assessment of petitioners’ various contentions with regard to any bias or conflict of interest on the part of respondents, ‘flic much anticipated decision of the Court of Appeals in a case, is instructive.

There is no factual determination before this Court from which a decision, consistent with the parameters set forth by the Court of Appeals can be made. Such a finding would require a hearing and determination of the allegations, which action is obviated by the decision herein. Therefore, petitioners” demand for an order disqualifying respondents and appointing a special prosecutor is denied as moot. Any such finding would’ be “academic as the holding of the Appellate Division and respondents’ failure to re-present the matter within 45 days, foreclose further prosecution of the facts and circumstances surrounding that indictment.

Given the facts and circumstances as presented on the instant petition, it cannot be fairly said that petitioners have stated a constitutional speedy trial claim. Nor is their claim on this ground one which cannot be addressed in the context of any future criminal matter, should one effectuate. Therefore they would not be entitled to the issuance of a Writ of Prohibition on their ground of the Sixth Amendment speedy trial under CPL 30.30.

Lastly, there is again no factual determination on geographic jurisdiction before the Court upon which a Writ of Prohibition can be properly entered Such a finding would come from consideration of the facts developed in the criminal case, which are not before this Court. Therefore this ground would also fail as moot.

If you have legal concerns and don’t know what to do, you can contact our Nassau County Criminal Lawyers here in Stephen Bilkis and Associates and narrate the facts involving your concerns. Our lawyers will inform you of your rights and the remedies available to your case. For other matters, you can also consult Nassau County Sex Crime Attorneys.

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