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Donnaruma v. Carter

Supreme Court of New York, Albany County

July 11, 2013

In the Matter of Colin DONNARUMA, Daniel Morrissey, Eric Catine, Timothy Holmes, Petitioners,
Albany City Court Judge William A. CARTER, Albany County District Attorney P. David Soares, Respondents. In the Matter of the Application of P. David Soares, District Attorney of Albany County, Petitioner, For a Judgment in the Nature of Prohibition under Article 78 of the Civil Practice Law and Rules
The Honorable William A. Carter, as City Court Judge, City of Albany, and Colin Donnaruma, Daniel Morrissey, Eric Catine and Timothy Holmes, Respondents.

[969 N.Y.S.2d 756] Law Offices of Mark S. Mishler, (Mark S. Mishler, of counsel), Kindlon, Shanks & Associates, (Kathy Manley, of counsel), P. David Soares, District Attorney, (Christopher D. Horn, of counsel), Albany, Attorneys for Colin Donnaruma, Daniel Morrissey, Eric Catine and Timothy Holmes.

E. Stewart Jones, PLLC, (James Knox, of counsel), Troy, Attorneys for the Hon. William A. Carter.


On May 23, 2013, Colin Donnaruma, Daniel Morrissey, Eric Catine and Timothy Holmes (collectively " the Occupy Petitioners" ) commenced a special proceeding (" Proceeding No. 1" ) pursuant to CPLR article 78, seeking to compel the Hon. William A. Carter to dismiss the criminal charges pending against them in Albany City Court. Judge Carter has filed an [969 N.Y.S.2d 757] answer in opposition to their verified petition (" the Occupy Petition" ).

Albany County District Attorney P. David Soares (" District Attorney" ) did not file any response to the Occupy Petition, but he did commence a second special proceeding (" Proceeding No. 2" ) on May 30, 2013, the day before scheduled suppression hearings in City Court. The petition filed in Proceeding No. 2 (" District Attorney's Petition" ) seeks to prohibit Judge Carter from ordering the prosecutor to call witnesses at the suppression hearings or from enforcing such an order through his contempt powers. Judge Carter opposes the District Attorney's Petition. The Occupy Petitioners did not answer the District Attorney's Petition, but they informally join in the arguments made therein.

For the reasons that follow, the Court concludes that a statement of a district attorney declining continued prosecution of a criminal case does not divest the court of jurisdiction or otherwise impose a mandatory duty upon the court to dismiss the case, even where the criminal defendant consents to dismissal. However, the trial court cannot order the district attorney to call witnesses at a suppression hearing or enforce such an order through contempt. Accordingly, the Occupy Petition is denied, and the District Attorney's Petition is granted.


The Occupy Petitioners were arrested on June 13, 2012 in the City of Albany in connection with the activities of Occupy Albany. Each of the Occupy Petitioners is charged with one or more counts of Disorderly Conduct, a violation (Penal Law § 240.20[5], [6] ), and Colin Donnaruma also was charged with Resisting Arrest, a class A misdemeanor ( id. § 205.30).

The Occupy Petitioners were arraigned in City Court on June 14, 2012 before Judge Carter. At each arraignment, the District Attorney's Office (" the Office" ) appeared for the People, filed a superseding information, made a bail recommendation, served a CPL § 710.30 notice and declared readiness for trial. The cases were adjourned until June 19, 2012, at which time a briefing schedule for pretrial motions was set. At an August 21, 2012 appearance, the District Attorney's Office proposed to adjourn all of the charges in contemplation of dismissal. Judge Carter agreed, so long as the Occupy Petitioners performed community service on behalf of military veterans. However, the Occupy Petitioners rejected plea agreements that were conditioned upon community service at a September 7, 2012 court appearance.

On September 21, 2012, the Occupy Petitioners filed identical motions to dismiss. Among other things, the motions sought an order " pursuant to People v. Di Falco, 44 N.Y.2d 482, 406 N.Y.S.2d 279, 377 N.E.2d 732 [1978] and Cantwell v. Ryan, 309 A.D.2d 1042, 766 N.Y.S.2d 135 [3d Dept. 2003], aff'd 3 N.Y.3d 626, 782 N.Y.S.2d 394, 816 N.E.2d 183 [2004], dismissing the accusatory instruments because the District Attorney has notified the Court that his office is declining to prosecute." It appears that the Office had orally communicated such a declination to defense counsel, but not to City Court.

On October 4, 2012, almost four months after the initial appearances, the District Attorney's Office advised City Court that it " is declining to prosecute the charges" against the Occupy Petitioners. The letter added that the Office " will not be participating in motion practice or future proceedings relating to the instant charges."

The motions to dismiss were denied by City Court in substantively identical decisions dated November 26, 2012. While recognizing the " wide latitude and discretion [969 N.Y.S.2d 758] afforded a district attorney exercising his or her prosecutorial discretion", Judge Carter determined that the District Attorney had affirmatively exercised his discretion to prosecute the charges against the Occupy Petitioners by, among other things, filing a superseding accusatory instrument, declaring trial readiness, engaging in plea negotiations and appearing in court for conferences. Having exercised prosecutorial discretion to pursue the charges for almost four months, Judge Carter reasoned that the District Attorney was obliged to move for a dismissal in the interests of justice pursuant to the Criminal Procedure Law (" CPL" ) if he wished to discontinue the prosecutions. The decisions closed with the following caution:

... [G]iven the District Attorney's October 4, 2012 letter stating that his office declines to prosecute these charges and " will not be participating in motion practice or future proceedings," the Court is constrained to note that, should the Office of the District Attorney fail to appear at the next scheduled court date, this Court may be forced to utilize one of the few available options left to it under these circumstances, including, but not limited to, its contempt powers ( see Cloke v. Pulver, 243 A.D.2d 185, 187-190, 675 N.Y.S.2d 650 [3d Dept. 1998] [noting three options for a trial judge where a District Attorney refuses to prosecute a pending matter] ).

On December 4, 2012, the Office wrote to Judge Carter to advise that " the People will not be going forward or calling any witnesses at any hearings or trials scheduled in the above captioned matters and are, accordingly, not ready for trial pursuant to CPL 30.30." The letter further stated that the Office " will, of course, be present at any and all scheduled court dates."

The Occupy Petitioners filed a second round of dismissal motions on January 12, 2013, contending principally that: (a) the speedy trial/readiness period established by CPL § 30.30 had expired; and (b) the District Attorney's decision not to prosecute represented a " legal impediment to conviction" within the meaning of CPL § 170.30(1)(f). In a letter dated January 28, 2013, the District Attorney's Office advised that it did not oppose the defense motions to dismiss.

In decisions dated April 12, 2013, Judge Carter denied as untimely the branch of the motions seeking dismissal on account of a jurisdictional or legal impediment to conviction, ruling that such an application should have been included in the prior motions or otherwise made within the prescribed period ( see CPL § 255.20[1] ). As to the request for speedy trial/readiness relief, Judge Carter declined the Occupy Petitioners' request to charge the period between August 28, 2012 and the date of the motion solely to the People as post-readiness delay, explaining as follows:

The entire basis of the defendant's CPL 30.30 postreadiness motion is premised upon what this Court previously deemed to be a legal nullity: the Albany County District Attorney's hearsay statement to defense counsel and two letters filed with the Court, that were not affirmed, pronouncing his decision to not prosecute this case. While it is not entirely clear, it appears that the Albany County District Attorney has been attempting to invoke the doctrine of nolle prosequi through the filing of the above two letters with this Court declaring his intention to decline prosecution.... However, in 1881, with the passage of section 672 of the Code of Criminal Procedure, entry of a nolle prosequi was abolished. In 1970, with the passage of Criminal Procedure Law, the Legislature enacted section 170.30 as an " all [969 N.Y.S.2d 759] inclusive" comprehensive legislative scheme for dealing with motions to dismiss local criminal court accusatory instruments. Thus, in the absence of a CPL 170.30 motion, the District Attorney's pronouncement of his subjective feelings, including verbalization of his prosecutorial discretion, is legally irrelevant. (citations omitted).

In addition to holding that " failure to prosecute is not a legally cognizable ground for dismissal by the court, even within the context of a claim of postreadiness delay" ( citing People v. Anderson, 66 N.Y.2d 529, 537, 498 N.Y.S.2d 119, 488 N.E.2d 1231 [1985] ), the denial of CPL § 30.30 relief was independently supported by reference to the Occupy Petitioners' failure to " to set forth any mathematical calculation, including applicable exclusions, to support [the speedy trial] motion[s]."

The decisions closed by noting the following: First, neither the District Attorney nor the Occupy Petitioners had moved at any point to dismiss the charges in furtherance of the interests of justice in accordance with CPL § 170.30(1)(g). Second, the District Attorney had not provided the court with any explanation or rationale for declining continued prosecution of the Occupy cases. Third, the District Attorney had not provided the court with any explanation for his refusal to pursue an interests of justice dismissal. Finally, Judge Carter stated that the record before him did not permit consideration of an interests of justice dismissal on the court's own initiative, as authorized by CPL § 170.40(2).

The parties returned to City Court on May 24, 2013 for combined suppression hearings. The District Attorney's Office was present, but declined to call any witnesses or otherwise oppose the defense motions. The following dialogue between Judge Carter and Chief Assistant District Attorney (" ADA" ) David Rossi ensued:

COURT: ... Would you please place on the record your reasons for not calling any witnesses in this proceeding.
ADA:Your Honor the District Attorney has made a decision to decline prosecution in this matter. We haven't opposed any of the defense motions. We don't plan to oppose their motions. And to the extent that we are required to be in court and appear on the matter, we'll do that, but we'll not be going forward and meeting our burden.
COURT: ... I actually need to make sure that you understand your duties and obligations with regard to this hearing. And simply appearing here does not fulfill your obligations.
* * *
COURT: [You are] obligated to participate.
ADA: I am here to participate, ...

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