The opinion of the court was delivered by: Stanley A. Smolkin, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the printed Official Reports.
The defendant Douglas A. Rome and a co-defendant were each charged with one count of Assault in the Third Degree, a violation of Section 120.00(1) of the Penal Law. The prosecution alleges that on September 13, 2008, the defendants, two New York City police officers, assaulted the complainant, a City of Long Beach firefighter. The People of the State of New York are represented by Assistant District Attorney Daniel Grusenmeyer, of counsel to the Honorable Kathleen Rice, District Attorney for the County of Nassau, State of New York. The defendant Rome is represented by Anthony M. Grandinette, Esq.
By notice filed on April 3, 2009, the defendant timely moved for an Order, in effect, directing that the instant matter be removed from the Long Beach City Court to the Nassau County District Court. The co-defendant joined in the instant application. On May 8, 2009, the People submitted an Affirmation in Opposition to the motion. A separate decision will be issued for each defendant.
In support of his argument as to the grounds for removal, the defendant cites certain newspaper articles in which Long Beach City Manager Charles Theofan, described by the defendant as "an influential figure in the Long Beach community," made inculpatory remarks regarding the defendants and their role in the alleged incident. The defendant contends that Mr. Theofan's statements are "of such character as to excite local popular passion and prejudice so that defendants will not be able to have the fair trial to which they are entitled." The defendant further notes that the City of Long Beach is a very localized community in which it can be expected that potential jurors would be well aware of prejudicial facts regarding the instant matter which could impact the defendants' ability to receive a fair trial.
This Court recognizes that the City of Long Beach is a small and tight-knit community. The Long Beach Fire Department consists of both paid and volunteer firefighters. The Long Beach Fire Department members are friends, neighbors and relatives of the citizens of the Long Beach community, whose residents would comprise the jury in a trial of the instant matter. The Court is familiar with the newspaper articles submitted by the defendant in support of his motion and by the prosecution in its opposition to the motion, as well as additional articles published in The Long Beach Herald regarding the circumstances of this locally high profile matter which has attracted persistent media attention. In many of these articles, Mr. Theofan is attributed with numerous statements in which he, in effect, assigns guilt to the defendants and states as fact certain of the prosecution's allegations in the instant matter. The Court acknowledges that the great deal of local publicity concerning this emotionally charged event, as well as comments of influential figures within the community, could "excite local popular passion and prejudice" (People v. DiPiazza, 24 NY2d 342, 347 ), affect the impartiality of the jurors in a trial of this matter, and ultimately impact their deliberations.
This Court is also cognizant of the factors generally to be considered when determining whether transfer of a matter is appropriate. As stated by the Nassau County Supreme Court upon granting the transfer of a case involving a charge of disorderly conduct from the Long Beach City Court to the Nassau County District Court, "there must be an appearance that justice is being properly dispensed; both defendant and the public must feel that defendant is getting a fair, unbiased, unprejudiced trial; and it is to the interest of the People of the State that no defendant be improperly convicted or acquitted because a Judge or jury unintentionally bends backward against one or the other" (People v. Graydon, 59 Misc 2d 330, 331 [Supreme Court, Nassau County 1969]).
In light of the above, although the Court would be inclined to deem the instant matter appropriate for removal from this Court to the Nassau County District Court, for the reasons stated below the Court is, nevertheless, without the authority to effectuate such a transfer.
II. "Change in Venue" as opposed to "Removal"
Before addressing the issue of the Court's lack of authority to grant the relief that the defendant seeks, it should initially be noted that although the defendant denominates his motion as one for a change in venue, the reference to a change in venue is technically incorrect. A change in venue may be accomplished only as between different branches of the same court (see McKinney's Consolidated Laws of New York, Book 29A, New York City Civil Court Act § 306, pg. 111 ["a change of venue is a device that applies only in a court having two or more geographical divisions. Thus, a change of venue in a supreme court action under Article 5 of the CPLR contemplates changing the place of trial from one county to another. But all the while the case is and remains a supreme court case. All that happens on a change of venue is that the locale of the action is changed from the county in which it was commenced to another county"]). Rather, the correct name for the procedure that the defendants seek in the instant matter of transferring the matter from the Long Beach City Court to the Nassau County District Court is removal (see id. ["Removal is involved whenever a case must be changed from one court to a different court, while a change of venue entails only a switch from one geographical segment of a single court to another segment of the same court"]). In addition, it is noted that the pertinent statutory language generically refers to the process of removal as a "transfer."
In seeking his relief, the defendant notably fails to cite any authority, statutory or otherwise, which would permit this Court to remove this matter to the Nassau County District Court. Therefore, a review of the relevant statutory authority regarding the removal procedure is necessary.
III. Authority for Removal
The authority for removal of an action from the Long Beach City Court to the Nassau County District Court primarily stems from two sources: the Constitution of the State of New York, Article VI, ...