Calendar Date: November 20, 2017
Law Firm, PC, Latham (Stephan R. Weiss of counsel), for
Michael G. Magguilli, Town Attorney, Newtonville (Rebekah N.
Kennedy of counsel), for Peter G. Crummey and another,
David Soares, District Attorney, Albany (Christopher D. Horn
of counsel), for P. David Soares, respondent.
Before: McCarthy, J.P., Rose, Devine, Mulvey and Rumsey, JJ.
MEMORANDUM AND ORDER
from a judgment of the Supreme Court (Ryba, J.), entered
August 23, 2016 in Albany County, which dismissed
petitioner's application, in a combined proceeding
pursuant to CPLR article 78 and action for declaratory
judgment, to, among other things, review a determination of
respondent Town Justice of the Town of Colonie denying
petitioner's request for a preliminary hearing.
2016, petitioner was arraigned in respondent Town of Colonie
Justice Court on a felony complaint charging her with assault
in the third degree and robbery in the second degree.
Respondent Town Justice of the Town of Colonie set bail and
scheduled a preliminary hearing for June 1, 2016. By June 1,
petitioner had made bail, but continued to demand a
preliminary hearing. The Town Justice rebuffed her demand,
noting that she was no longer in custody and had refused to
formally move for a preliminary hearing so that any delay
would be chargeable to her for speedy trial purposes.
then commenced the present CPLR article 78 proceeding and
declaratory judgment action seeking, among other things, a
declaration that she had the right to a preliminary hearing
and a direction that one be conducted. Supreme Court
dismissed the petition/complaint as moot since, during its
pendency, an indictment was returned charging petitioner with
crimes stemming from the conduct alleged in the felony
complaint. Petitioner now appeals.
affirm. A preliminary hearing assesses the strength of the
evidence underlying the felony complaint and primarily exists
to "determine whether there exists reasonable cause to
hold a defendant in custody pending action by a [g]rand
[j]ury" (Matter of Vega v Bell, 47 N.Y.2d 543,
549 ; see CPL 180.10 ; 180.70). It has no
impact upon the work of the grand jury, which "has the
power to indict regardless of whether a defendant's
preliminary hearing has resulted in a dismissal, or whether a
preliminary hearing has been held at all" (People v
Phillips, 88 A.D.2d 672, 672 ; see CPL
190.55; People ex rel. Hirschberg v Close, 1 N.Y.2d
258, 261 ). Accordingly, when the felony complaint was
superseded by the indictment handed up against petitioner
(see People v Watson, 105 A.D.3d 1264, 1265 ),
it "obviat[ed] the need for a [preliminary] hearing
and" rendered any issues regarding her entitlement to
one moot (People v Damphier, 51 A.D.3d 1146, 1147
, lv denied 11 N.Y.3d 787');">11 N.Y.3d 787 ; see
CPL 180.80  [a]; Matter of Angell v Ferris, 227
A.D.2d 475, 475-476 , lv denied 88 N.Y.2d 816');">88 N.Y.2d 816
; People v Frazier, 202 A.D.2d 985, 985
, lv denied 83 N.Y.2d 910');">83 N.Y.2d 910 ; People v
Phillips, 88 A.D.2d at 672).
argues that this case falls within the narrow exception to
the mootness doctrine in that "the issue to be decided,
though moot, (1) is likely to recur, either between the
parties or other members of the public, (2) is substantial
and novel, and (3) will typically evade review in the
courts" (Coleman v Daines, 19 N.Y.3d 1087, 1090
; see Matter of Hearst Corp. v Clyne, 50
N.Y.2d 707, 714-715 ). Petitioner was not "in
custody" following her arraignment on the felony
complaint and, being "at liberty on bail, " a
preliminary hearing could provide her nothing more than the
dismissal of the felony complaint and the exoneration of her
bail for the brief period between the end of the hearing and
the issuance of an indictment against her (CPL 180.70 ;
cf. CPL 180.80). The outcome of the hearing would
have no impact on her pretrial release status after she was
indicted, as that issue would be addressed at her arraignment
on the indictment (see CPL 210.15 ; 530.40).
Thus, in the absence of any deprivation of petitioner's
liberty, "the issue of whether [she] was denied a prompt
preliminary hearing is not a significant or important
question" so as to fall within the exception to the
mootness doctrine (Matter of Angell v Ferris, 227
A.D.2d at 476).
finally observe that a combined CPLR article 78 proceeding
and declaratory judgment action is civil in nature
(see CPLR 103, 105 [b], [d]; 3001, 7801) and, even
in the limited circumstances where it may serve as a
collateral vehicle to challenge actions taken in a criminal
case, it is in no way a substitute for "[t]he right of
review by appeal in criminal matters" (Matter of
State of New York v King, 36 N.Y.2d 59, 63 ;
see CPL art 450). Petitioner is, as a result,
obliged to pay all fees required to commence and prosecute a
combined civil proceeding and action (see CPLR 8020
[a]; 8022; cf. CPLR 8018 [b] ).
McCarthy, J.P., Rose, Mulvey and ...