You are here: / Judges
, ,

Judges Not Obligated to Adhere to Pay-Voucher Recommendations Made by Assigned Counsel Program

The Fourth Department dismissed an Article 78 petition brought by the Onondaga County Bar Association Assigned Counsel Program (ACP) which sought to vacate the respondents-judges’ approval of pay vouchers submitted by respondent-attorney.  The Fourth Department wrote:

…[T]his proceeding challenges the authority of respondents to approve vouchers that do not comply with the ACP Plan; it does not challenge the amount of the compensation awarded, a matter reviewable only before an administrative judge ….  We reject petitioners’ contention that respondents have a mandatory duty to follow the ACP Plan and that their failure to refuse to pay vouchers not in compliance with the Plan is arbitrary and capricious.  Although ACP personnel may make recommendations to the trial court with respect to the payment of vouchers, the trial courts are not obligated to adhere to those recommendations.  “The ACP Plan does not take away from the courts the ultimate authority to determine assigned counsel’s compensation; it merely provides for a preliminary review and recommendation, which individual trial judges are free to accept or reject”… .  Matter of County of Onondaga and Onondaga County Bar Association Assigned Counsel Program, Inc., 57, 4th Dept 7-19-13

 

, , ,

Article 78 Petition in Nature of Prohibition Against Judge and District Attorney Granted

The Second Department explained the criteria for an Article 78 action (against a judge and district attorney) in the nature of prohibition.  In this case Supreme Court had ordered defendant to appear for resentencing after the Appellate Division had ruled without remitting the matter to Supreme Court for further proceedings.  The Second Department granted the petition and prohibited the resentencing:

The remedy of prohibition generally lies when a court or an officer acts or threatens to act without jurisdiction or exceeds its authorized powers in a proceeding over which it has jurisdiction (see CPLR 7803[2];…). To warrant the extraordinary remedy of prohibition, it is not enough that the court made a mere legal error. Rather, the court’s error must implicate its very powers and thereby be subject to correction by prohibition….  Matter of Dow v Tomei, 2013 NY Slip Op 04799, 2nd Dept 6-26-13

 

,

Substitute Judge Can Rule on Motion Argued Before Another Judge

The full-fledged opinion by Judge Read was succinctly summarized by the Court of Appeals as follows:

We hold that Judiciary Law § 21 does not bar a substitute judge from deciding a question of law presented in a motion argued orally before another judge so long as a transcript or recording of the prior argument is available for review, and “the substitute indicates on the record the requisite familiarity with the proceedings and no undue prejudice occurs to the defendant or the People” …. Put another way, section 21 does not mandate a mistrial or that the pending motion be re-argued orally in front of the substitute judge. People v Hampton, No 92, CtApp, 6-6-13

 

, ,

District Attorney’s Prosecution of a Case in Which the Complainant Was a Sitting Judge Created the Appearance of Impropriety—A Special Prosecutor Should Have Handled the Case

A sitting City Court judge was the complainant in a harassment case.  A judge and a defense attorney from another county were appointed to handle the case.  The defense attorney made a motion to have a special prosecutor appointed as well because of the relationship between the District Attorney’s Office and the complainant.  That request was denied and the denial was affirmed on appeal to County Court.  The Court of Appeals, in a full-fledged opinion by Judge Pigott, reversed, finding the District Attorney’s Office’s involvement in the case created the appearance of impropriety:

Here, while we do not find that any actual impropriety occurred, there is an unacceptably great appearance of impropriety – the appearance that the District Attorney’s Office refused to accept a reduced charge because the complainant was a sitting judge who demanded that the matter go to trial, rather than because a trial was, in its own disinterested judgment, appropriate. The complainant was a City Court Judge who had the authority to preside over cases involving this District Attorney’s office, and the criminal charges were unrelated to her official position, so that her status as a judge should not have been a factor in the resolution of the case. Nor was there anything unique or unusual about the charges, since they involved communications between two people who had formerly been in an intimate relationship – a scenario frequently seen in harassment cases. However, despite protracted and repeated plea negotiations, the District Attorney’s office did not offer defendant a reduced charge or agree to a plea that included a favorable sentence, such as an ACD, community service, or the like. While this alone would not be enough to raise an appearance of impropriety, there are other aspects of the record that do. Defendant’s original counsel from the Public Defender’s office, who had represented defendants in cases involving this District Attorney’s office for more than a decade, averred that he had never before seen the office take such a hard-line position in a case involving comparable charges and a similar defendant. Although provided ample opportunity to respond, the District Attorney’s office replied with nothing more than conclusory denials, failing to rebut the allegations with even a single example of a comparable case it had similarly refused to resolve with an ACD or a plea to a violation. Because the District Attorney’s office failed to take steps to dispel the appearance of inappropriate disparate treatment, we conclude that this is one of those rare cases in which a significant appearance of impropriety was created, requiring disqualification.  People v Adams, 47, CtApp 3-28-13

 

 

, , ,

Court’s Sua Sponte Transfer of a Zoning-Related Case to Another County Was Improper; The Denial of a Request for a Variance Does Not Affect Real Property within the Meaning of CPLR 507

The Fourth Department determined Supreme Court erred in transferring a case to another venue sua sponte and in determining that an action seeking to annul the denial of a variance affected real property within the meaning of CPLR 507:

Petitioner commenced this CPLR article 78 proceeding seeking to annul two determinations of respondent made in connection with petitioner’s application for an area variance from a provision of the Town of Whitestone’s Zoning Ordinance. The proceeding was commenced in Supreme Court, Onondaga County, and by …order …that court, sua sponte, transferred the proceeding to Supreme Court, Oneida County, pursuant to CPLR 507. We agree with petitioner that the court erred in transferring the proceeding sua sponte. CPLR 509 provides that the place of trial may be changed to another county “by order upon motion, or by consent.” CPLR 510 provides the grounds for the change of the place of trial, upon a motion. A court “is authorized to change venue only upon motion and may not do so upon its own initiative” …. Additionally, a CPLR article 78 proceeding seeking to annul a determination denying a request for an area variance does not affect the title to, or the possession, use or enjoyment of, real property, and thus the court erred in relying on CPLR 507 in transferring the proceeding.  Matter of Mimassi v Town of Whitestone Zoning Board of Appeals, 189, CA 12-01652, 4th Dept. 3-22-13

 

 

, ,

Defendants Accused of Crimes Not Listed in the Controlling Statutes Are Not Eligible for the Judicial Diversion Program—The Statutes Do Not Allow for Judicial Discretion

In a full-fledged opinion by Justice Centra, the Fourth Department determined a Monroe County Court Judge exceeded his authority by allowing defendants accused of crimes not listed in the relevant statute to participate in the judicial diversion program.  The Court wrote:

CPL 216.00 (1) provides as follows: “ ‘Eligible defendant’ means any person who stands charged in an indictment or a superior court information with a class B, C, D or E felony offense defined in article two hundred twenty or two hundred twenty-one of the penal law or any other specified offense as defined in subdivision four of section 410.91…’”

It is undisputed that respondent defendants were not charged with any offenses under Penal Law §§ 220 or 221, or any specified offense in CPL 410.91. In our opinion, that ends the inquiry, and respondent defendants are not eligible for judicial diversion. It is well settled that “ ‘[w]here the language of a statute is clear and unambiguous, courts must give effect to its plain meaning’ ” ….Likewise, “statutory interpretation always begins with the words of the statute” … .* * *

… [W]e agree with petitioner that she is also entitled to declaratory relief . “Although a declaratory judgment often revolves around a particular set of facts, [t]he remedy is available in cases where a constitutional question is involved or the legality or meaning of a statute is in question and no question of fact is involved” … . [T]he “criminal court’s ruling must have an obvious effect extending far beyond the matter pending before it so that it is likely that the issue will arise again with the same result in other cases” … .

[The opinion includes discussion of the nature and application of petitions for mandamus to compel and prohibition, and the County Court Judge’s argument that the use of judicial discretion re: the diversion program is allowed by statute.] Matter of Doorley v Hon John L. DeMarco, et al, 122, OP12-01563, 4th Dept. 3-22-13

 

, ,

Court’s Sua Sponte Dismissal of Complaint Reversed

The Second Department reversed the trial court’s sua sponte dismissal of plaintiff’s mortgage foreclosure complaint.  The trial court dismissed the complaint on the ground that the plaintiff lacked standing and imposed sanctions based on plaintiff’s alleged reliance upon a “robosigner” (according to the trial court’s own Internet research).  On the issues of “sua sponte” dismissal and standing, the Second Department wrote:

The Supreme Court abused its discretion in, sua sponte, directing dismissal of the complaint with prejudice and cancellation of the notice of pendency … . “A court’s power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal” … . Here, the Supreme Court was not presented with any extraordinary circumstances warranting sua sponte dismissal of the complaint. Moreover, as the defendants failed to answer the complaint and did not make pre-answer motions to dismiss the complaint, they waived the defense of lack of standing … . Furthermore, a party’s lack of standing does not constitute a jurisdictional defect and does not warrant sua sponte dismissal of a complaint by the court … .  HSBC Bank USA, NA v Taher, 2013 NY Slip Op 01806, 2011-06455, 2012-00841, Index No 9320/09, 2nd Dept. 3-20-13

 

,

Court Participation in Testimony Read-Back Is Error

Although the Second Department concluded it was harmless error, the Court noted that the trial court erred when it participated in reading back certain trial testimony to the jury.  The Court wrote:  “We take this opportunity to emphasize that ‘[w]hen, during a read-back of testimony, a trial judge assumes the role of a witness or inquiring counsel, he or she may unwittingly and erroneously convey to [the] jury that the court is aligned with the party or counsel whose role the court has assumed in the read-back’…”.  People v Facey, 2012 NY Slip Op 01568, 2012-11829, Ind No 9839/08, 2nd Dept. 3-13-13

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy