In the Matter of D. HOLLEY CARNRIGHT, as District Attorney of Ulster County, Petitioner,
DONALD WILLIAMS, as Ulster County Judge, Respondent, et al., Respondent.
Calendar Date: November 16, 2017
Holley Carnright, District Attorney, Kingston, petitioner pro
T. Schneiderman, Attorney General, Albany (Frank Brady of
counsel), for Donald Williams, respondent.
Before: McCarthy, J.P., Lynch, Devine, Mulvey and Aarons, JJ.
MEMORANDUM AND JUDGMENT
pursuant to CPLR article 78 (initiated in this Court pursuant
to CPLR 506 [b] ) to, among other things, compel
respondent Ulster County Judge to reinstate a superior court
information against respondent Jessica Hernandez.
February 2015, respondent Jessica Hernandez was arrested in
the Town of Marlborough, Ulster County for driving while
intoxicated with children in the vehicle and was subsequently
charged with aggravated driving while intoxicated
(see Vehicle and Traffic Law § 1192 [2-a] [b]).
Petitioner and Hernandez entered into a plea agreement
whereby Hernandez would plead guilty as charged under a
superior court information and enter into a period of interim
probation. Upon Hernandez's completion of the interim
probation, she could withdraw her felony plea and plead
guilty to driving while intoxicated as a misdemeanor and be
sentenced to, among other things, a period of conditional
discharge. The plea agreement was placed on the record and,
in December 2015, Hernandez pleaded guilty to aggravated
driving while intoxicated.
November 2016, petitioner moved to reduce the charge against
Hernandez from a felony to a misdemeanor. Respondent Ulster
County Judge (hereinafter respondent) granted the motion, and
Hernandez pleaded guilty to the misdemeanor charge. Prior to
sentencing, however, respondent advised petitioner that he
was inclined to further reduce the charge against Hernandez
from a misdemeanor to a violation. At the sentencing hearing,
respondent noted that Hernandez, among other things, went
"above and beyond the restrictions placed on her, "
volunteered her services as a domestic violence counselor and
successfully completed a substance abuse treatment program.
Respondent then, on his own motion and over petitioner's
objection, reduced the misdemeanor charge of driving while
intoxicated to driving while ability impaired as a violation.
Hernandez was subsequently sentenced to a one-year period of
conditional discharge, during which she was prohibited from
operating a vehicle without an ignition interlock device, and
she was ordered to pay a $300 fine, among other things.
Petitioner thereafter commenced this CPLR article 78
proceeding in this Court seeking a writ of prohibition and a
writ of mandamus.
CPL 220.10 (3), "the defendant may, with both the
permission of the court and the consent of the people, enter
a plea of guilty of a lesser included offense."
"Where the record shows that the prosecutor's
consent to a plea is premised on a negotiated sentence and a
lesser sentence is later deemed more appropriate, the People
should be given the opportunity to withdraw their
consent" (People v Farrar, 52 N.Y.2d 302');">52 N.Y.2d 302,
307-308 , mod 52 N.Y.2d 302');">52 N.Y.2d 302 ).
Respondent concedes in his brief that he committed a legal
error in accepting Hernandez's plea to a reduced charge
without petitioner's consent. The question therefore
distills to whether a writ of prohibition or writ of mandamus
is warranted given that Hernandez's guilty plea has
already been accepted, she was already sentenced by
respondent to, among other things, a one-year conditional
discharge period and such period expired in November 2017.
extraordinary remedy of prohibition is only available where a
body or officer proceeded, is proceeding or is about to
proceed without or in excess of jurisdiction and there is a
clear legal right to such relief" (Matter of
Richards v Cuomo, 88 A.D.3d 1043, 1044  [internal
quotation marks and citation omitted], appeal
dismissed 18 N.Y.3d 830');">18 N.Y.3d 830 ; see Matter of Town
of Brunswick v County of Rensselaer, 152 A.D.3d 1108,
1111 ; Matter of Broome County Dist. Attorney's
Off. v Meagher, 8 A.D.3d 732, 733 , lv
denied 3 N.Y.3d 612');">3 N.Y.3d 612 ). Petitioner seeks a writ of
prohibition to prohibit respondent from accepting guilty
pleas to reduced charges in the future without his consent.
Respondent, however, noted at the sentencing hearing that
this was the first time that he had ever reduced a charge
without petitioner's consent and that he did so
"under the circumstances of [the] case." Given that
the record does not indicate that respondent has undertaken
such similar action in the past or has expressed an intention
to do so in the future, and taking into account
respondent's concession that his actions were erroneous,
petitioner is not entitled to a writ of prohibition
(compare Matter of People v Christensen, 77 A.D.3d
174, 195 ). To the extent that petitioner seeks a writ
to prohibit respondent from accepting Hernandez's plea of
guilty, such request is moot given that respondent has
already accepted the plea and imposed a sentence thereon and
the sentence expired in November 2017 (see generally
People v Cosme, 80 N.Y.2d 790, 792 ).
is also not entitled to a writ of mandamus to compel
respondent to vacate Hernandez's plea and reinstate the
superior court information. As discussed, Hernandez's
plea was accepted, a sentence was imposed and Hernandez had
already started to serve the conditional discharge portion of
the sentence. Under these circumstances, we do not have the
inherent authority to upset the plea (see People v
Moquin, 77 N.Y.2d 449, 452-453 ; Matter of
Campbell v Pesce, 60 N.Y.2d 165, 168-169 ).
McCarthy, J.P., Lynch, Devine and ...