Aurnou v. Leggett

79 A.D.2d 623, 433 N.Y.S.2d 811, 1980 N.Y. App. Div. LEXIS 13972

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 5, 1980
• Status: Published

Opinions

Proceeding pursuant to CPLR article 78 to prohibit respondents from enforcing or seeking to enforce an oral order of the County Court, Westchester County, made November 21, 1980, which, in a pending criminal case, directed petitioner, as counsel for the defense, to produce certain material for an in camera inspection by the court in order to assist it in determining whether such material is discoverable by the People under CPL 240.40 (subd 1). The District Attorney has moved to dismiss the proceeding. Motion granted and petition dismissed, on the law, and as a matter of discretion, without costs or disbursements. At issue in this proceeding for a writ of prohibition is a midtrial ruling of constitutional import. Although we are of the view that the petitioner has presented a strong argument that compliance with the trial court’s order would violate his client’s privilege against self incrimination, the essential nature of the court’s assertedly excessive exercise of power remains an alleged error of procedural or substantive law during the conduct of a criminal trial. The Court of Appeals has counseled that “it is crucial to distinguish between an error in procedure or substantive law during a litigation and the arrogation of power which is subject to correction by prohibition.” (La Rocca v Lane, 37 NY2d 575, 580.) The distinction is often difficult to discern, for, as the La Rocca court declared (p 580), “there is no sharp line between a court acting in error under substantive or procedural law and a court acting in excess of its powers, if only because every act without jurisdiction or in excess of its powers in a proceeding over which is has jurisdiction of necessity involves an ‘error of law’ * * * [Nevertheless,] in extreme enough cases the distinction is easily apparent. At one extreme, a trivial error in excess of jurisdiction may be just that, trivial, and hardly worthy of treatment as an excess of power. On the other hand, at the other extreme, a gross abuse of power on its face and in effect may be in reality so serious an excess of power incontrovertibly justifying and requiring summary correction.” Here, the trial court ordered that certain material be produced by defendant for an in camera inspection, in order to assist the court in determining whether the material was discoverable by the People under CPL 240.40 (subd 1). We do not believe the order represents such a serious excess of power so vitally different from other trial rulings of constitutional import as to warrant our interfering with the trial. In addition, we are seriously concerned with the mischief that can result to the criminal justice system if a significant precedent is established permitting collateral proceedings to abruptly interrupt on-going trials. In our view, this court’s imprimature upon such practices would constitute yet another step in the frustrations of the orderly administration of justice. If the challenged order reflects an excessive or unconstitutional exercise of power, it can be remedied like other errors and, as in other cases, which achieve lesser notoriety, by appeal from a final judgment of conviction should that eventuate. Rulings which implicate constitutional rights and issues "are not unique to the instant case—they are integral ingredients of virtually every criminal trial. Thus, trial court refusals to suppress confessions, identifications and property allegedly seized in violation of the Fourth Amendment often place defendants in great jeopardy in claimed violations of sacred constitutional precepts. Nevertheless, none would argue that this court should make midtrial evaluations when such errors are claimed. Despite the dramatic terms in which the dissent describes the current circumstances, we are not convinced that the constitutional question posited requires special treatment by an appellate body during an on-going trial. As Chief Judge Breitel has written in the context of a prohibition challenge to a different alleged excess of power in a criminal proceeding: “Were allowance of this kind, of proceeding to become a precedent, one would have to anticipate innumerable proceedings in all sorts of criminal matters to review allegedly prejudicial errors of law for which there would be no eventual appellate review or only appellate review after final judgments, and then onlv of conviction. No trial can be conducted while appellate courts by their own protracted proceedings review the alleged errors which may arise preliminary to the trial, during the trial, and before verdict and judgment.” (Matter of State of New York v King, 36 NY2d 59, 63.) Accordingly, the petition is dismissed. Lazer, Mangano and O’Connor, JJ., concur.