Appeal from a judgment of the United States District Court for the Eastern District of New York, Jacob Mishler, Judge, granting appellee's motion to dismiss appellant's cause of action under 42 U.S.C. § 1983 seeking injunctive and declaratory relief in respect to a pending state prosecution. Affirmed on the basis of abstention under Younger v. Harris, 401 U.S. 37, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971).
LUMBARD, OAKES, and PRATT, Circuit Judges.
This civil rights action is brought by appellant Morano, who is a defendant on bail pending appeal of his prosecution on felony charges in the County Court of Nassau. Morano seeks injunctive relief and a declaration that he was unconstitutionally denied a preliminary hearing with the opportunity to cross-examine witnesses and introduce evidence in his own behalf. While N.Y. Crim. Proc. Law § 180.10 (McKinney 1982) seems to require that a court provide a preliminary hearing on a felony complaint at the request of the defendant,*fn1 section 180.10 has been construed by lower state courts to vest the prosecutor with discretion to proceed by presentation of facts directly to the grand jury. See People v. McDonnell, 83 Misc. 2d 907, 909, 373 N.Y.S.2d 971, 974-75 (N.Y. Sup. Ct. 1975).Compare People v. Galak, 114 Misc. 2d 719, 452 N.Y.S.2d 795 (N.Y. Sup. Ct. 1982) (construing § 180.10 in light of N.Y. Crim. Proc. Law § 190.55), and People v. Edwards, 19 Misc. 2d 412, 189 N.Y.S.2d 39 (N.Y. Gen. Sess. 1959), with People v. Heredia, 81 Misc. 2d 777, 367 N.Y.S.2d 925 (N.Y. Dist. Ct. 1975). Be that as it may, the instant suit was brought in the United States District Court for the Eastern District of New York seeking injunctive relief and a declaratory judgment that § 180.10 violates the equal protection and due process clauses in allowing the district attorney discretion to determine whether felony complaints will go to a preliminary hearing or directly to the grand jury without examination. The district court, Jacob Mishler, Judge, dismissed the complaint on the ground of prosecutorial immunity, citing Taylor v. Kavanagh, 640 F.2d 450 (2d Cir. 1981); See also Powers v. Coe, 728 F.2d 97 (2d Cir. 1984). The parties have insisted upon briefing and arguing the immunity issue before us, despite the fact that in dictum Supreme Court v. Consumers Union, 446 U.S. 719, 736-37, 64 L. Ed. 2d 641, 100 S. Ct. 1967 (1980), pointedly reaffirmed Ex parte Young, 209 U.S. 123, 52 L. Ed. 714, 28 S. Ct. 441 (1908) (no prosecutorial immunity from declarative and injunctive relief); see also Pulliam v. Allen, 466 U.S. 522, 80 L. Ed. 2d 565, 104 S. Ct. 1970, 52 U.S.L.W. 4525, 4531 (1984) (no judicial immunity from attorney's fees in injunction case); Doran v. Salem Inn, Inc., 422 U.S. 922, 45 L. Ed. 2d 648, 95 S. Ct. 2561 (1975). We affirm, however, on the basis of Younger v. Harris, 401 U.S. 37, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971) (federal injunctive relief against state court prosecution not permissible); Samuels v. Mackell, 401 U.S. 66, 27 L. Ed. 2d 688, 91 S. Ct. 764 (1971) (federal declaratory relief against state court prosecution not permissible); and Kugler v. Helfant, 421 U.S. 117, 44 L. Ed. 2d 15, 95 S. Ct. 1524 (1975) (federal injunctive relief to prevent possible misuse of grand jury testimony in state court persecution not permissible).
Morano was arrested on October 18, 1982, for the criminal sale and possession, with intent to sell, of cocaine, felony offenses under N.Y. Penal Law §§ 220.16 and 220.39 (McKinney 1980). Following his arrest and release on bail, appellant requested a preliminary hearing pursuant to N.Y. Crim. Proc. Law § 180.10. This request was denied by the district attorney of the County of Nassau.
The district court found that on November 3, 1982, Morano appeared for a hearing before a magistrate of the district court for the County of Nassau, but the hearing did not take place because the prosecution was not yet ready. The district court further found that on subsequent occasions Morano was prepared for a hearing but the prosecutor was not.
In an effort to obtain a preliminary hearing, appellant initiated a state civil action under Article 78*fn2 in the Supreme Court of New York, Nassau County. On January 5, 1983, the court denied the request. An appeal was taken to the Appellate Division, Second Judicial Department, and argument was heard on November 4, 1983. As yet, the Appellate Division has not rendered a decision.
On March 11, 1983, while Morano's Article 78 action was in process, he was indicted by the grand jury of Nassau County on four felony counts for the sale and possession of cocaine. Despite two requests for a stay of the criminal proceedings pending appeal of his Article 78 action, his trial went forward. On January 16, 1984, he was found guilty as charged in the indictment. On March 9, 1984, he was sentenced to serve five to fifteen years. Sentencing has been stayed pending appeal of the conviction.
Meanwhile, on the day this action was filed, November 10, 1983, Judge Mishler quite properly denied Morano's request for a stay of the state court criminal proceedings on grounds based upon Younger v. Harris, supra.
On March 13, 1984, the district court ultimately granted appellee's motion to dismiss the complaint,*fn3 and this appeal followed.
Little or no discussion is needed. This is the classic Younger v. Harris case, seeking to enjoin pending state court criminal proceedings, with no showing of bad faith or harassment or other unusual or extraordinary circumstances. Nor is this a case like Gerstein v. Pugh, 420 U.S. 103, 43 L. Ed. 2d 54, 95 S. Ct. 854 (1975), in which the Court held impermissible a pretrial detention without a judicial hearing on the issue off whether there was probable cause for the detention; Morano was not detained. Moreover, Morano raised his federal constitutional claims as a defense in the criminal proceedings themselves, as well as the Article 78 proceedings which are pending.*fn4 While the question whether the latter proceedings provide a relatively complete, practical, and efficient remedy for the alleged federal wrong may seem dubious in light of the long-pending appeal to the Second Department, restraint of the concluded criminal proceedings themselves is simply not warranted here.*fn5 So saying, we of course do not reach the constitutional (questions) on the merits.