The opinion of the court was delivered by: Scudder, P.J.:
Matter of Green v Demarco
Appellate Division, Fourth Department
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.
PRESENT: SCUDDER, P.J., CARNI, SCONIERS, AND GREEN, JJ.
Proceeding pursuant to CPLR article 78 (initiated in the Appellate Division
of the Supreme Court in the Fourth Judicial Department pursuant to CPLR 506 [b] )
seeking to prohibit the conducting of certain proceedings.
It is hereby ORDERED that the petition/complaint is unanimously granted in part without costs by
prohibiting respondent-defendant Honorable John DeMarco from contemporaneously conducting a
suppression hearing and bench trial on the indictment regarding respondent-defendant Fernando Lopez,
the petition/complaint insofar as it seeks relief regarding respondent-defendant Ellis Mechallen is
dismissed as moot, the petition/complaint insofar as it seeks relief in the nature of mandamus to
review is denied, and
It is ORDERED, ADJUDGED and DECREED that respondent-defendant Honorable John DeMarco shall not,
even with the consent of a defendant, commence a trial prior to the determination of pretrial motions as
required by CPL 710.40 (3).
Opinion by Scudder, P.J.:
Petitioner-plaintiff (hereafter, petitioner) commenced this original hybrid CPLR article 78 proceeding/declaratory judgment action seeking three forms of relief: a judgment pursuant to CPLR 7803 (3), mandamus to review, concluding that the determination of respondent-defendant Honorable John DeMarco (hereafter, respondent) to conduct, contemporaneously, the suppression hearings and bench trials in the criminal matters involving respondents-defendants Ellis Mechallen and Fernando Lopez was, inter alia, in violation of lawful procedure; a judgment pursuant to CPLR 7803 (2), a writ of prohibition, prohibiting respondent from conducting such joint proceedings; and a judgment pursuant to CPLR 3001 declaring that conducting the joint hearings/trials is in violation of CPL 710.40 (3), which requires that a court determine pretrial suppression motions prior to the commencement of a trial. The matters concerning Mechallen and Lopez were stayed pursuant to CPLR 7805 pending the outcome of this proceeding. We note at the outset, however, that Mechallen subsequently withdrew her suppression motion and the bench trial was conducted. Contrary to the contentions of petitioner and Mechallen, we conclude that the allegations in the petition with respect to Mechallen are moot, and those parts of the petition/complaint seeking relief with respect to her therefore should be dismissed. We further conclude that petitioner is not entitled to relief in the nature of mandamus to review pursuant to CPLR 7803 (3), inasmuch as the actions of respondent do not constitute an administrative action made in the exercise of discretion (see generally Kraham v Mathews, 305 AD2d 746, lv denied 100 NY2d 512), and thus that part of the petition/complaint seeking that relief should be denied.
The issues properly before us are whether a writ of prohibition should be issued prohibiting respondent from conducting a joint suppression hearing and bench trial in the matter involving respondent-defendant Fernando Lopez and whether petitioner is, in addition, entitled to declaratory relief to that effect. Writ of Prohibition CPL 710.40 (3) provides that, "[w]hen a motion is made before trial, the trial may not be commenced until determination of the motion." Petitioner alleges that, if respondent is permitted to proceed with a joint suppression hearing/trial in the Lopez matter in contravention of CPL 710.40 (3), the People will be denied the right to appeal from an order granting the suppression motion inasmuch as their right to appeal is limited to appeal from suppression orders that are entered prior to trial (see CPL 450.20 ). The issue before us therefore is whether respondent's determination to conduct, contemporaneously, the suppression hearing and bench trial in the Lopez matter contravenes CPL 710.40 (3) and thus is in excess of respondent's authorized powers in a matter over which he has jurisdiction (see CPLR 7803 ).
It is axiomatic that relief in the nature of a writ of prohibition "is available . . . to prevent a court from exceeding its authorized powers in a proceeding over which it has jurisdiction [only where] . . . petitioner has established a clear legal right to that relief" (Matter of Pirro v Angiolillo, 89 NY2d 351, 355-356 [internal quotation marks omitted]; see Matter of Rush v Mordue, 68 NY2d 348, 352-353). Whether to grant the extraordinary remedy of a writ prohibiting respondent from conducting suppression hearings and bench trials contemporaneously is left to the sound discretion of this Court (see Rush, 68 NY2d at 354). Simply stated, if petitioner has a clear legal right to relief and respondent is exceeding his authorized powers in this matter, then this Court has the discretion to grant a writ of prohibition (see Pirro, 89 NY2d at 355-356; Matter of Holtzman v Goldman, 71 NY2d 564, 569). In ...