Morgenthau v. Haft

78 A.D.2d 604, 432 N.Y.S.2d 179, 1980 N.Y. App. Div. LEXIS 13046

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 10, 1980
• Status: Published

Opinions

Application under CPLR article 78 for a writ addressed to Justice of the Supreme Court prohibiting him from fixing bail for one William Phillips and rendering null and void the order of that court, made on or about September 29, 1980, purporting to fix bail, granted, without costs or disbursements. On November 1, 1974, Phillips was convicted in Supreme Court, New York County, after jury trial, of homicide, and sentenced on January 28, 1975 to a term of 25 years to life. Prior to sentence, he had moved to set aside the verdict, claiming he had not received a fair trial, the ground assigned being that a juror had, during the trial, applied to the District Attorney for employment. The motion was denied after hearing (87 Misc 2d 613). On the same ground, he exhausted the State appellate process without success, and then applied, citing the same reason, to United States District Court for habeas corpus. On March 13, 1980, the habeas court, on the ground assigned, granted a conditional order which provided that he would be released unless brought to trial anew within 90 days. The District Attorney appealed. Phillips sought bail without success, both from the District Court and the Second Circuit Court of Appeals. The District Court modified its earlier order by staying its operation until 60 days post "determination” of the appeal taken by the District Attorney. On September 26, 1980, a divided Court of Appeals affirmed. As of this writing, less than 21 days later (Federal Rules of Appellate Procedure, US Code, tit 28, Appendix, rule 41), a mandate implementing the judgment has not issued, nor has the Circuit Court shortened the time for its issuance. Three days after that judgment was rendered, a Justice of Supreme Court, New York County, respondent here, fixed bail for Phillips, rejecting the District Attorney’s argument that he was without jurisdiction so to do. Operation of that order has been stayed ad interim by a Justice of this court. In our view, resolution of the question of Supreme Court’s jurisdiction in the premises must await resolution of the question of legal significance of the mandate. Phillips’ counsel argues that the legal consequence of the judgment of the Court of Appeals is to trigger transfer of the case back to Supreme Court forthwith, conferring complete pretrial jurisdiction on that court. We do not agree. The outstanding order of the District Court fixed a future date for Phillips’ release upon a certain condition, and that date has not yet arrived. Nor will it arrive until the time period fixed in that order starts running upon issuance of the mandate, 21 days after judgment (Federal Rules of Appellate Procedure, rule 41, subd [a]), and is completed 60 days later. The judgment did not order issuance of the mandate earlier than 21 days thereafter, as might have been done under the rule. The District Attorney has stated that he will apply timely for rehearing (rule 40), which might further delay issuance of the mandate. Phillips argues that, because the judgment starts periods of time running during which certain appellate procedures may be availed of, it has the same force as does the mandate in terminating matters in the Court of Appeals. Not so. "The effect of the mandate is to bring the proceedings in a case on appeal in our Court [the Court of Appeals] to a close and to remove it from the jurisdiction of this Court” (Ostrer v United States, 584 F2d 594, 598). This is clear and to the point. The case is still in the Federal system, and not in Supreme Court, New York County. Respondent Justice acted in excess of his authority, and his order must be vacated. Concur—Sullivan, Markewich and Yesawich, JJ.