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Donovan v. Pesce

April 6, 2010

IN THE MATTER OF DANIEL M. DONOVAN, JR., ETC., PETITIONER,
v.
MICHAEL L. PESCE, ETC., ET AL., RESPONDENTS.



Per curiam.

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 Official Reports.

A. GAIL PRUDENTI, P.J., WILLIAM F. MASTRO, REINALDO E. RIVERA and PETER B. SKELOS, JJ.

OPINION & JUDGMENT

PROCEEDING pursuant to CPLR article 78 for a judgment, inter alia, prohibiting the enforcement of an order of the Appellate Term of the Supreme Court for the Second, Eleventh, and Thirteenth Judicial Districts dated May 7, 2009, which, among other things, directed the petitioner to personally serve his appellant's brief and a copy of the order dated May 7, 2009, upon the respondent Troy Williams.

The respondent Troy Williams is the subject of a criminal prosecution pending in the Criminal Court of the City of New York for the County of Richmond. In an order dated September 26, 2008, that court (Sciarrino, Jr., J.) granted Williams's motion to suppress certain identification testimony. The petitioner, the District Attorney of Richmond County, on behalf of the People of the State of New York, perfected an appeal from that order on January 21, 2009. The petition alleges that the District Attorney's appellate brief was served "by mail, both on [Williams's] trial counsel and [on Williams] pro se." The appeal from the order dated September 26, 2008, is currently pending in the Appellate Term of the Supreme Court for the Second, Eleventh, and Thirteenth Judicial Districts.

Upon issuing the order dated September 26, 2008, the Criminal Court was required to "promptly advise [Williams], on the record or in writing," of various rights that Williams would have in the event that the People decided to appeal (22 NYCRR 200.40[a]), including the right to "make application to the appellate court for assignment of counsel" under defined conditions (22 NYCRR 200.40[a][3]). It does not appear that the Criminal Court complied with this obligation.

The petition alleges that a representative of the District Attorney, as the result of the confusion of Williams's pending prosecution with another one, mistakenly informed the Criminal Court that the appeal noted above had been withdrawn, prompting the Criminal Court, on March 30, 2009, to dismiss the prosecution that was then pending against Williams, apparently with the District Attorney's consent. However, in an order dated July 29, 2009, the Criminal Court (Sciarrino, Jr., J.), on the District Attorney's unopposed motion, vacated the order of dismissal and directed the case to proceed to trial on August 17, 2009.

Meanwhile, Williams had failed to file a respondent's brief in connection with the District Attorney's appeal from the order dated September 26, 2008. Accordingly, the respondents Michael L. Pesce, Joseph G. Golia, and Jaime A. Rios, in their capacity as Justices of the Appellate Term of the Supreme Court for the Second, Eleventh, and Thirteenth Judicial Districts (hereinafter collectively the Appellate Term Justices), issued an order dated May 7, 2009, in which Williams was advised of various rights that he had as a respondent on the District Attorney's appeal, and directed the District Attorney to serve a copy of the order dated May 7, 2009, "together with a copy of their brief, upon [Williams], by personal delivery of the same to him." The order also stated that unless the defendant, inter alia, responded to the appeal pro se or by retained counsel, "he may be deemed to have waived his right to counsel" on the appeal. In addition, the Appellate Term's order, inter alia, directed the District Attorney to file proof of such service within 20 days of the date of the order and permitted the District Attorney to "make an ex parte application to [the Appellate Term] for an order authorizing alternative methods of service" in the event that the District Attorney was unable, "with due diligence," to make personal service upon Williams" (id.).

Although the District Attorney subsequently discovered that it had been a mistake to consent to the dismissal of the Williams prosecution, and successfully moved to vacate the March 30, 2009, order of dismissal, there is no indication in the record that the District Attorney filed proof of service upon Williams of a copy of the order dated May 7, 2009, or a copy of his appellate brief, or that the District Attorney made any ex parte application to the Appellate Term for permission to make service by another method.

After the prosecution in the Criminal Court was revived by virtue of the order dated July 29, 2009, the District Attorney moved in the Appellate Term to vacate the order dated May 7, 2009, and subsequently commenced the present CPLR article 78 proceeding in this Court, seeking, inter alia, a judgment "prohibiting enforcement" of the order dated May 7, 2009. The Attorney General has submitted an answer and affidavit in opposition to the petition on behalf of the Appellate Term Justices, arguing that there is no clear right to the relief requested since "there is no statutorily mandated method" by which the Appellate Terms are to assure that a defendant in a criminal case is adequately apprised of his or her rights in the event that the People take an appeal from an order of the Criminal Court.

We agree with the essential points made by the Attorney General and, therefore, conclude that the petition must be denied.

In People v Ramos (85 NY2d 678), the case upon which the District Attorney primarily relies, the Court of Appeals reviewed the validity of a rule under which the People could perfect an appeal only by "serving a copy of the appellant's [People's] brief upon respondent's appellate attorney or upon the respondent personally" (id. at 681 n 3, quoting 22 NYCRR former 600.8[f]). This rule, at least in those cases where the defendant was without appellate counsel, "provid[ed] for an absolute right of personal service of the People's brief" (id. at 688). The Court held that this rule was inconsistent with the relevant statutes, since it permitted a criminal defendant who is at liberty effectively to defeat the People's right to appellate review, by evading personal service of the People's brief, thus triggering the eventual dismissal of the People's appeal.

In People v Garcia (93 NY2d 42), the Supreme Court had granted the defendant's motion to set aside a verdict convicting him of certain crimes and, on the People's appeal, the Appellate Division, First Department, noting that there had been no appearance by the defendant, reversed that order, reinstated the verdict, and remitted for sentencing. The Court of Appeals reversed, concluding that the Appellate Division, First Department, had erred in failing to "satisfy itself that defendant was represented or had waived counsel as a matter of record" (id. at 46). The Court stated: "[W]hen it was discerned that defendant was unrepresented on appeal, absent record evidence that defendant was informed of his right to counsel and that he waived that right, the [First Department] should not have proceeded to consider and decide the People's appeal" (id. at 46, citing Swenson v Bosler, 386 US 258, 260). The Court emphasized that the ...


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