Opinion
1207010
01-15-2014
People v. Kerry Kennedy
JANET DIFIORE, ESQ. District Attorney of Westchester County By: John George, Esq., First Deputy District Attorney Richard Longworth Hecht, Esq., Chief of Appeals and Special Litigation Doreen Lloyd, Esq., Assistant District Attorney Westchester County Courthouse GERALD B. LEFCOURT, P.C. Co-Counsel for Defendant By:Gerald B. Lefcourt, Esq. WILLIAM I. ARONWALD, ESQ. Co-Counsel for Defendant
JANET DIFIORE, ESQ.
District Attorney of Westchester County
By: John George, Esq., First Deputy District Attorney
Richard Longworth Hecht, Esq., Chief of Appeals and Special Litigation
Doreen Lloyd, Esq., Assistant District Attorney
Westchester County Courthouse
GERALD B. LEFCOURT, P.C.
Co-Counsel for Defendant
By:Gerald B. Lefcourt, Esq.
WILLIAM I. ARONWALD, ESQ.
Co-Counsel for Defendant
, J.
In this misdemeanor prosecution, Defendant Kerry Kennedy seeks to have the place of trial relocated. The People take no position regarding this precise request.
Based upon the unique and special circumstances presented, the undersigned determines that the physical facilities of the Town Court of the Town of North Castle are so limited in relation to the demands of this particular case as to warrant the relocation of the trial and will remove the case to the New York State Supreme Court, Westchester County, for trial in the Daronco County Courthouse in White Plains, New York.
Relevant Background
On or about July 13, 2012, Defendant was arrested and issued a simplified traffic ticket for having violated Section 1192 (4) of the Vehicle and Traffic Law, alleging she drove on Interstate 684 within the Town of North Castle while her ability was impaired by drugs. She was arraigned in the Town Court of the Town of North Castle on July 17, 2012 by Hon. Elyse Lazansky on a misdemeanor information charging her with a single count of violation of Vehicle and Traffic Law Section 1192(4). She entered a plea of not guilty and was released on her own recognizance.
On or about September 11, 2012, a Superseding Misdemeanor Information was filed which contains a single count of violation of Section 1192 (4). The Superseding Misdemeanor Information charges that Defendant, on or about July 13, 2012, operated her motor vehicle while her ability to do so was impaired by Zolpidem; it is alleged that, while on Interstate 684, Defendant's vehicle swerved in and out of traffic lanes, veered out of the center lane and entered the right lane and struck another vehicle, causing damage to Defendant's vehicle and tire. It is further alleged that Defendant continued to drive, with a heavily damaged tire, for several miles, exiting Interstate 684 and entering Route 22, while her ability to do so was impaired by the drug Zolpidem. Defendant entered a plea of not guilty and was released on her own recognizance.
Defendant's motion to dismiss, made pursuant to Criminal Procedure Law ("CPL") Section 170.40, was denied by Justice Lazansky on May 21, 2013. Following that determination, counsel for the People and the Defendant, as well as Justice Lazansky, embarked on an effort to identify an alternative public location for the trial. In addition, Justice Lazansky attempted to have the Town of North Castle make physical adjustments to the courtroom in order to mitigate at least some of the constraints that would make conducting a trial in the Town facility so challenging. The trial had been scheduled to commence, with jury selection, on January 22, 2014.
By letter dated November 22, 2013, counsel for Defendant wrote to the undersigned to request a conference to discuss an alternative location for the trial of the case. A conference was held on the record on December 3, 2013. At the conference, the People acknowledged that the undersigned has the discretionary authority to remove the case from the North Castle Town Court to either the Supreme or the County Courts. Further, the People represented that they have conducted trials in the North Castle facility in the past and stated that they anticipated continuing to do so. However, the People declined to take a position as to Defendant's request to relocate this trial.
At the conclusion of the conference, the undersigned inquired of counsel as to whether they sought to have a determination made on formal motion papers. Neither side asked that the matter be determined on formal papers; indeed, the District Attorney's Office explicitly stated that formal papers were not necessary as "this is a discretionary matter with the Court, and it's your decision that is binding."
In an off-the-record conversation with counsel at the Bench following the conclusion of the conference, this Court reviewed with counsel the provisions of the CPL relating to the removal of actions from one local criminal court to another — provisions with which the undersigned is familiar because of the relative frequency of administrative applications for relief under these provisions. The Court specifically pointed to CPL Section 170.25, which authorizes the making of a motion by a misdemeanor defendant to require that the charge be prosecuted by grand jury indictment. In connection with such motion, a superior criminal court (the Supreme Court or the County Court) is authorized to stay the proceeding in the local criminal court. Should the grand jury file an indictment, the proceedings in the local criminal court terminate and the defendant is to be arraigned in the superior court. Counsel for Defendant indicated that they were not familiar with this statutory provision.
The undersigned had intended to address the application by defense counsel by the end of the year, being mindful of the scheduled trial date. However, by letter dated December 12, 2013, counsel for Defendant requested "additional" relief under CPL Section 170.25. This request was opposed by the District Attorney and the pendency of the request caused a delay in the disposition of the initial defense application.
By letter dated December 18, 2013, the District Attorney objected to the December 12, 2013 letter request on two procedural grounds, reserving substantive objections for a later date. First, the People contend that Section 170.25 requires a formal motion and that a letter application is inadequate. Second, the People, while again acknowledging that the undersigned is the appropriate forum for addressing the initial request of Defendant for an alternative trial location, assert that Defendant is engaging in forum shopping by presenting a Section 170.25 application to the undersigned. The People assert that a Section 170.25 motion should be made to the superior court and randomly assigned to a judge who regularly presides over a criminal part. Defense counsel rejoined by letter dated December 19, 2013 and the People replied by letter dated December 20, 2013.
By letter dated December 26, 2013, the undersigned requested a conference with counsel for the purpose of obtaining clarification as to the relationship between Defendant's initial request of November 22, 2013 and Defendant's subsequent request of December 12, 2013. Due to holiday schedules and inclement weather, the conference was not held until January 6, 2014. At the conference, the Court inquired of defense counsel as to which of the two applications Defendant sought to have first determined, the Court indicating that a determination of one could well have an effect on the determination of the other, regardless of whether the undersigned determined both requests or only one of them. Defense counsel stated that Defendant sought to have the undersigned determine the November 22, 2013 request and that such application was the primary one. Consequently, the undersigned now proceeds to the determination of that application.
As this Court was preparing this determination, a letter was received from Justice Lazansky on January 8, 2014 in which she indicated that, because of the pendency of the present application, the renovations she proposed had not been undertaken and the trial date of January 22, 2014 was no longer practicable.
In determining this matter, the undersigned, in addition to considering the submissions of counsel and the information provided by counsel at the conferences, has inspected the North Castle court facility. The undersigned has also consulted with Hon. Michael V. Coccoma, Deputy Chief Administrative Judge for the Courts Outside New York City, but emphasizes that the undersigned is solely responsible for this Decision and Order.
Justice Court Facilities
As discussed in the September 2008 Report by the Special Commission on the Future of the New York State Courts, our town and village courts play a crucial role in the lives of millions of New Yorkers by dispensing justice in millions of cases each year. Local justices conduct all manner of misdemeanor criminal matters, including suppression hearings, jury trials and sentencing proceedings. While these town and village courts are vital to the administration of justice, they are purely local institutions, each funded and operated by its own municipality. The judges serve part-time; the judges and the court staff are paid by the locality; the locality is responsible for court security. The locality is responsible for providing the physical facility (this also being the case in the full-time courts).
While some justice courts convene in modern courtrooms that are well equipped to handle large dockets and complex proceedings, most are housed in local multi-use municipal offices. Just as in the entire State, town and village court physical facilities in the Ninth Judicial District vary considerably. The magistrates who preside in the local courts have generally been able to overcome, with their dedication and diligence, the limitations and difficulties created by less-than-ideal court facilities.
The Action Plan for the Justice Courts, Two Year Update, as well as the 2008 Report, point out both that retrofitting courts can be costly to tight municipal budgets and the co-location of Justice Courts with other local functions complicates plans to upgrade and secure the court space. Town and village courts are key components of the Unified Court System and the Office of Court Administration endeavored to address the issues by providing localities with financial assistance to encourage upgrades and leave local governments the flexibility to see them through.
The Justice Court Assistance Program ("JCAP"), which began in 1999, invites towns and villages to apply for grants to fund Justice Court expenses. Among other things, grants have been issued for the purpose of making courtroom improvements, including the construction of judge's benches, jury boxes, spectator seating and other furniture. Despite these efforts, a wide disparity still persists among the justice courts in the quality of their facilities.
The Physical Challenges That this Case Poses
For the North Castle Town Court Facility
Some of the physical limitations of the North Castle Town Court are described in the 2013 JCAP application submitted by the North Castle Court, an application that sought funding in order to make modifications on account of this particular case: The North Castle Courtroom is a multi-purpose meeting room. The design was executed with no proper thought to holding jury trials. It has been unworkable for the Court since it was built almost 30 years ago. We seem to be scheduling more and more jury trials as the years progress. Whenever a jury trial is held, all parties are uncomfortable and unhappy. There is no jury box. The jury sits in the audience with the public right behind them, there is no separation or protection from potential influence. The layout of the room and configuration of the furniture (which is bolted to the ground) not only precludes proper placement of a protected jury space, it prohibits space for attorneys and clients to sit together at a work table. The defense can often barely hear the witness who sits at the opposite end of the room.
The undersigned has been informed that, while some jury trials have been conducted in the North Castle facility, only perhaps 1 or 2 have ever been more than a day or two in duration and none, apparently, have been matters that have attracted the presence of large numbers of spectators or the media.
The room used by the North Castle Town Court contains a raised, long, bench-like podium or dais at the front, consistent with its use by the Town Council, other municipal bodies, and the Town Court. There is only limited space between the dais and the front row of spectator seating. In that space, there are no tables or desks or even any room for them. There are some four or five long rows of audience seating, with chairs bolted to the floor, the chairs being of the type found in high school auditoriums. The chairs do not have either permanent or folding desks associated with them. There are approximately 40 to 50 audience seats in total.
Defendant is a member of a prominent family; counsel indicate that they anticipate that members of her family and her personal friends will attend the proceedings. It is undisputed that this case has generated significant media attention and that there have been at least 20 members of the press in attendance at court sessions. There is no reason to think that there would be any fewer attending the trial; rather, the likelihood is that there would be more.
The undersigned has been informed that the modification plan designed to accommodate this trial contemplates removal of at least some of the front row of seats in order to accommodate tables for counsel. The counsel tables and seats would have to be positioned so as to avoid obstructing the jury's views of the witnesses as they testify. This, however, would make it difficult for one set of counsel (apparently the defense) to see and hear the witnesses. The positioning of tables and chairs for counsel in this space would also mean that audience members seated towards the far end of the seating rows would have to traverse the length of the rows in entering or exiting, entailing disruption. There does not appear to be an effective means for seating persons with disabilities.
With the jury seated in the front row, and even with the counsel tables somewhat offset, at least some members of the jury would likely be exposed to conversations occurring at counsel tables and be in a position to view documents on those tables. This presents the prospect of jurors being made privy, even unintentionally, to inadmissible comments and evidence. The ability of counsel to confer with each other and, in the case of the defense, with their client, would be impaired. Similarly, with audience members (such as family, friends, media and members of the public) being seated in the rows immediately behind the jury, the jury would be exposed to comments made by audience members. Audience comments may be audible to the judge and counsel and some comments might not be, making control of the courtroom difficult and creating the potential for disputes as to what was stated and by whom.
Removing some of the front row of seats (assuming that this agreeable to the Town Board) and limiting the use of the remaining front row seats to jurors (it being inappropriate to have jurors seated immediately next to non-jurors) would reduce the number of available seats for the public. It would become necessary to allot the remaining seats among the People, the defense (and her family and friends), the media and the general public. It would seem that a pool system would have to be created for media coverage and a rotation or lottery created for the public. There is no room or area that could serve as an overflow room into which the proceedings could be televised. Indeed, there is no space, other than a public corridor, where those unable to enter the courtroom or those excluded therefrom (such as potential witnesses) may wait.
The undersigned has been informed that the trial might take as much as two weeks, with several days for jury selection.
The undersigned understands that jury selection was planned to proceed with voir dire being conducted in panels of 30 to 40 prospective jurors. It seems manifest that the number of seats, even before any seats are removed, is insufficient for panels of such size. Having 30 to 40 prospective jurors in the seats would leave few, if any seats, for counsel, Defendant's relatives and friends, the media, and the general public. If seats are removed in order to create a working area for counsel, the problem is magnified. Even with the use of questionnaires to expedite the process, jury selection in this case is likely to take considerable time and involve a large number of prospective jurors. The events underlying the charge as well as the court proceedings themselves have been the subject of media reports; Defendant and her family are well-known. The limited number of seats will constrain the number of prospective jurors who can be brought in any one time, thus increasing the number of rounds and increasing the length of time needed to obtain a jury. In addition, prospective jurors may be subject to audience comments, a prospect enhanced by the likelihood that prospective jurors would have to be seated in subsequent rows.
While defense counsel have raised questions concerning the adequacy of security screening and parking, the undersigned does not view these considerations as significant obstacles to the conduct of the trial. The undersigned perceives that the Town Police will conduct appropriate security screening for persons entering the building and will make arrangements for parking for trial participants and for safe escort into the premises. This being said however, there is considerable cogency to the defense contention that once persons have entered the building, it would be very difficult to maintain separation of jurors from others present, such as counsel, witnesses, media members, Defendant's relatives and friends, and the general public.
The undersigned understands that there is a room which may serve as jury deliberation room. However, the jury would have to be assembled in that room at the beginning of each session and brought in and out of it during any recesses or side-bars,
with each entrance and exit from the courtroom involving traversing past one counsel table. When the jury assembles at the beginning of the morning and afternoon session, court staff would be required to escort the jurors to the room and shield them from the general public and media entering the facility at the same time.
For non-jurors, there is no available waiting or conference room; there is nothing other than the public corridor available for conferences among prosecutors (and their witnesses) and the defense (and their client and their witnesses). There is little prospect that either the prosecution or the defense will be able to have private conferences outside of the presence of the media and general public.
The facility has only one men's room and one women's room available for the use of all trial participants, including the judge, the jury, the prosecution, the defense, the witnesses, the media and the public. The court staff would have to make sure that such rooms were vacant each time a juror needed to use a restroom in order to prevent the juror from coming into contact with counsel, witnesses, Defendant's friends and relatives, the media and public, who would also need to use the same facility.
While the court space is less than ideal, the undersigned has little doubt that the difficulties can be overcome successfully in trials of limited duration and which place limited demands on the facility. The seating of the jury in the front row of the spectator section may not be as problematic when there are few, if any, spectators as it is when the room is full. The absence of counsel tables may be less problematic when the trial is limited and there are plenty of empty seats upon which items can be placed. The limited restrooms may not be an issue if there are few spectators and the trial is of short duration. And, of course, what may be tolerable for a day or two may well be intolerable for weeks.
The undersigned notes that the Town Court's JCAP grant identified a number of proposed changes to the facility, including
— removal of the existence audience chairs and replacement with pew-type seating;
— relocation of the dais/bench to a different wall;
— cutting the dais and raising part of it 2 feet in height and creating a witness box;
— cutting a new emergency exit and building a handicap accessible ramp; and
— creation of a jury box.
Apart from questions of expense and funding, the undersigned has no information as to the willingness of the Town Board to authorize permanent alterations to its meeting room. Modifications necessary for a court in order to conduct an infrequent high-profile criminal trial may be inappropriate and unacceptable to a Town Board which regularly uses the same room. Further, the time needed to make such modification is also unknown. The undersigned takes note of the District Attorney's comment, in the letter of December 18, 2013, that "this case is already 17 months old at defendant's doing." Regardless of whose responsibility it is for the passage of time (as to which the undersigned has no information), the undersigned believes that further delay should be minimized. The modifications suggested by the JCAP application would not address all of the identified concerns and awaiting them, if they happen at all, could delay this trial considerably.
A formal determination of the JCAP application is still pending.
The undersigned is concerned that, even if the trial commenced in the Town Court, issues could readily arise that would necessitate a mistrial, with the consequent waste of time, effort and funds, for both prosecution and defense. All that it would take would be a single untoward comment from the audience, some inappropriate contact between a media member or member of the public and a juror, some overhearing by a juror or witness of some private conversation between counsel, or some similar event occurring in such close quarters.
The undersigned is sensitive to the unmistakable legislative preference, expressed in the CPL, that misdemeanors and petty offenses be locally adjudicated. But here, there is a countervailing consideration as well. According to the superseding misdemeanor information and the supporting depositions, the alleged offense was committed on Interstate 684 and Route 22 (a state highway) and Defendant told law enforcement officers that she had been driving from Armonk to New York City. These assertions indicate to the undersigned that the conduct alleged had, or could have had, impacts that go beyond the Town borders.
The undersigned also strongly believes that all persons should be equal before the law; the highest and the lowest among us should be treated in an equal fashion. It is undoubtedly true that while the North Castle Town Court facility is less than ideal (and it should be observed that all court facilities have their limitations), it is nevertheless a passable forum for all but the most exceptional criminal cases. The circumstances present here which make this case unsuitable for this facility are, in the main, outside Defendant's control, such as the number of media persons who decide to report on her case and the number of members of the general public who decide to attend her trial. And, most important, she, like every one else, is entitled to a fair trial.
It is critical that justice be properly and fairly administered, both in fact and in appearance. Defendant and the public must perceive that the trial is fair and conducted with respect for all of the participants. It is in the overarching interest of the State that no defendant be improperly convicted or acquitted (see People v Graydon
59 Misc 2d 330, 331 [Sup Ct, Nassau County 1969]). Where the physical limitations of a court facility are such that the demands of a particular case will overwhelm them and cause difficulties beyond those generally associated with a criminal trial, the preference for local offenses to be adjudicated locally must give way to the protection of the fundamental fairness of the proceeding.
While the undersigned has focused on the impact of the facility upon Defendant, the undersigned also notes that conducting this trial in the North Castle facility will be greatly inconvenient to counsel, both the prosecution and the defense. Defendant is represented by two attorneys and it seems probable that they will have assistants with them. The People have had three representatives at the discussions with the undersigned and it seems likely that the prosecution table will not be occupied by only one prosecutor. Even more importantly, it is likely that conducting the trial in the North Castle facility will entail inconvenience to jurors, prospective jurors, witnesses, and the other trial attendees.
On these facts, the undersigned concludes that the defense application to relocate the trial should be granted.
There Is No Lawful Local Court Alternative
Defendant's request of November 22, 2013 seeks to have the case relocated to the White Plains City Court or to the local justice courts in either Yorktown or Mount Kisco. Such relocation is not legally permissible.
Pursuant to Section 19 (subd. a) of Article VI of the New York State Constitution, the Supreme Court has the general authority to transfer cases to another court within the same judicial department provided that the transferee court has subject matter jurisdiction and jurisdiction over the classes of persons named as parties. The jurisdiction of city, town and village courts is that prescribed by the Legislature (NY Const., Art. VI, §17 [subd. a]). The Legislature has generally confined the criminal jurisdiction of the city, town and village courts to matters having a nexus to the geographical limits of the political subdivisions in which these courts are situated (see CPL § 20.50).
A transfer from one local court to another is permitted only in limited circumstances: (a) the death, disability, incapacity or disqualification of all judges of the original court; or (b) the inability of the original court to form a jury (CPL § 170.15 [3]). Neither of these circumstances exist here.
An additional exception exists with respect to transfers from one local criminal court to another local criminal which has a designated drug court (CPL § 170.15[4]). Such a transfer is occasioned by motion of the defendant and the consent of the District Attorney.
Additionally, the undersigned does not perceive there being an appropriate basis to require these locally funded courts to bear the financial burden of this case and to set aside the business of these local courts in order that this case can be heard in their forum.
Removal to a Superior Court
Section 170.25 of the CPL provides that a defendant charged with a misdemeanor in a local criminal court may move, on notice to the prosecution, in a superior court for an order requiring that the charge be prosecuted by indictment and ordering the prosecution to present the charge to a grand jury. If the motion is granted, the order stays the proceedings in the local criminal court pending submission of the charge to the grand jury. If an indictment is filed, the local court prosecution terminates and defendant is arraigned on the indictment. If the grand jury dismisses the charge, the local court prosecution terminates.
Section 170.20 of the CPL provides for removal of a criminal case to a superior court at the instance of the District Attorney, but that provision is not relevant here.
This statutory procedure, on its face, gives a criminal defendant the opportunity to seek to have a grand jury assessment of the charges; the grand jury would be at liberty, subject to the evidentiary submissions, to indict for a felony, indict for a misdemeanor or dismiss the charge entirely. The statute requires the defendant to show, by motion, that there exists "good cause to believe that the interests of justice" require prosecution by indictment.
The case law developed under the current version of the statute, and before that, its predecessor, identifies five factors for consideration (see, e.g., People v Schultz, 114 Misc 2d 939 [Sup Ct, Onondaga County 1982]). The statute has its origins in an era in which a misdemeanor defendant did not necessarily have a right to a jury trial. Hence, the procedure was created to give a defendant the opportunity to obtain a jury trial, without thereby generating a jury trial in every single case such that the exception would become the rule (see People v Levy, 24 Misc 469 [Sup Ct, NY County 1898]; People v Rosenberg, 59 Misc 342 [Gen Sess 1908]).
The undersigned agrees with the District Attorney that this Defendant's present attempt to invoke the provisions of Section 170.25 is defective in that the letter application of December 12, 2013 is not a proper "motion" as contemplated by the statute. While Defendant subsequently served a notice of motion, that document does not contain a return date. Moreover, a motion must be supported by accompanying affirmations or affidavits, rather than just correspondence.
Since the letter request seeking to invoke Section 170.25 is not a sufficient "motion", and the prosecution, appropriately, has not addressed the merit of the arguments advanced in the letter, the undersigned expresses no opinion thereon.
The undersigned does not agree with the prosecution's assertion that defense counsel engaged in forum shopping. All agree that the initial application, as set forth in the letter of November 22, 2013, was properly addressed to the undersigned. Defense counsel did not know of the provisions of Section 170.25 until the undersigned happened to mention them at an off-the-record conference. The subsequent letter attempt to invoke Section 170.25 may be viewed as related to the original application. Had defense counsel filed a motion under Section 170.25 and had not marked it "related" to the pending application, they could have been accused of making duplicative applications to multiple judges. In any event, with this Decision and Order, the undersigned will have completed his obligations with respect to this matter and expects that any further applications will be addressed directly to the duly assigned jurist.
Section 170.25, and its companion provision in Section 170.20, address the ability of the defense and prosecution to effectuate the removal of a case to a superior court. However, these statutes do not address, or revoke, the constitutional powers granted to the Supreme Court to transfer cases unto itself (People v Correa, 15 NY3d 213, 230 [2010]).
Section 19 (subd. a) of the State Constitution states, in its second sentence, as follows: As may be provided by law, the supreme court may transfer to itself any action or proceeding originated or pending in another court within the judicial department other than the court of claims upon a finding that such a transfer will promote the administration of justice.
There is disagreement as to whether this constitutional provision is self-executing. While recent authority holds that it is (see People v Turza, 193 Misc 2d 432 [Sup Ct, Suffolk County 2002] [Leis, J]); People v Levandowski, 190 Misc 2d 738 [Sup Ct, Albany County 2002] [Ceresia, J]), there is older authority from the Appellate Division, Second Department, that the introductory phrase — "[a]s may be provided by law" — means that there must be legislative authority for the transfer (Matter of Dalliessi v Marbach, 56 AD2d 858 [2d Dept 1977] [assumption of jurisdiction of County Court civil case by Supreme Court on ground that County Court trial calendar was congested was improper as statute did not authorize a transfer on such grounds]). In People v Correa (supra, 15 NY3d at 224), the Court of Appeals noted the existence of this open question but did not decide it. As the undersigned sits in the Appellate Division, Second Department, the undersigned is obligated to follow the Dalliessi decision unless and until it is disclaimed by either the Second Department or the Court of Appeals (Summit Constr. Serv. Group, Inc. v Act Abatement, LLC, 34 Misc 3d 823 [Sup Ct, Westchester County 2011] [Scheinkman, J.]).
In People v Levandowski, the Court suggested that Dalliessi decision could be distinguished on the ground that no actual transfer order had been issued by which the Supreme Court took unto itself the County Court case in question. The undersigned finds this distinction unpersuasive as the Dalliessi court did not base its ruling on the absence of a formal order; rather, it determined the transfer, however it occurred, was without authority.
But here the undersigned concludes that there is legislative authority for a transfer. Section 10.20 (subd. 1[b]) of the CPL provides that the superior courts (defined in CPL §10.10 [subd. 2] as including the Supreme Court and the County Court) have "[t]rial jurisdiction of misdemeanors concurrent with that of the local criminal courts." Section 10.30 (subd. 1[b]) grants local criminal courts trial jurisdiction of misdemeanors "concurrent with that of the superior courts but subject to divestiture thereof by the latter in any particular case."
As the Court of Appeals noted in the Correa case, supra, neither the statute governing superior court misdemeanor jurisdiction nor the statute governing local court misdemeanor jurisdiction conditions the power of the superior court to try misdemeanor cases on the existence of an indictment or superior court information (Correa, supra, 15 NY3d at 230). Rather, "[t]o the contrary, both unqualifiedly state that superior courts possess subject matter jurisdiction to try all misdemeanor cases, a point that is evident from the broad language in CPL 10.30 (1)(b) recognizing that a superior court can exercise its divestiture authority in any particular case.' In its express language, the CPL acknowledges that superior courts — such as Supreme Court — have subject matter jurisdiction to try misdemeanor cases" (id.).
To this, the undersigned adds that the statutory provision for superior court concurrent jurisdiction to try misdemeanor cases does not make the exercise of that jurisdiction by a superior court subject to, or contingent upon, the granting of divestiture of local court jurisdiction in the circumstances allowed by CPL Sections 170.20 or 170.25. Similarly, the "broad language" in Section 10.30 (subd. 1 [b]) allowing local court misdemeanor trial jurisdiction to be divested in "any particular case" does not restrict divestiture to only those circumstances contemplated by Sections 170.20 or 170.25. Had the Legislature intended, in its grants of jurisdiction to the superior and local criminal courts, to limit concurrent misdemeanor jurisdiction in the superior courts, and concomitantly divest such jurisdiction in the local courts to the circumstances set forth in Sections 170.20 and 170.25, it could have easily done so by referencing those statutes in Sections 10.20 and 10.30.
Since preliminary proceedings in misdemeanor cases are conducted in local criminal courts (see CPL §10.30 [subd. 2]) , in order for the superior courts to exercise their statutory concurrent trial jurisdiction over misdemeanors, it is manifestly necessary for the superior court to remove or transfer the "particular case" to itself from the local criminal court in order to try it. If the Supreme Court could not exercise the authority to transfer an unindicted misdemeanor case to itself, it could not exercise its jurisdiction to divest local criminal court jurisdiction in any particular case, as statute permits. Likewise, if the Supreme Court could not exercise the authority to transfer an unindicted misdemeanor case to itself, its ability to broadly exercise its concurrent trial jurisdiction over misdemeanor cases would be significantly compromised.
This statute, too, provides for divestiture by "the superior courts and their grand juries," a phrase which does not limit divestiture to only the circumstances identified in CPL §§170.20 and 170.25.
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While CPL Section 210.05 directs that the only method for prosecuting an offense in a superior court is by grand jury indictment or by superior court information, Correa held that Section 210.05 is not a jurisdictional provision which precludes the Supreme Court from trying unindicted misdemeanor cases; rather, the Court of Appeals held that Section 210.05 is a limitation on prosecutorial power, precluding the People from seeking a trial in the superior courts without first obtaining an indictment or the defendant's consent to waive indictment and proceed by supreme court information. "The statute neither mentions nor purports to curtail the concurrent trial jurisdiction granted to Supreme Court elsewhere in the CPL ...." (Correa, supra, 15 NY3d at 231). Further, in this case, it is not the People that seek to have this misdemeanor case tried in a superior court, it is Defendant. Accordingly, the undersigned concludes that the authority exists for the Supreme Court to transfer this particular case to itself if it finds, as it does, that "the transfer will promote the administration of justice" (NY Const., Art. VI, §19 [subd. a]).
This construction of the relevant CPL provisions avoids the serious questions as to the constitutionality of those provisions. "Faced with the choice between an interpretation that is consistent with the Constitution (and the jurisdictional statutes in the CPL) and one that creates a potential constitutional infirmity, courts are to choose the latter" (People v Correa, supra, 15 NY3d at 232-233).
The undersigned recognizes that its analysis of the CPL would apply equally so as to allow it to transfer this particular case to the County Court. State Constitution Article VI, Section 19 (subd. c), gives the Supreme Court, "[a]s may be provided by law," the authority to transfer cases to the County Court where transfer would promote the administration of justice. Because the County Court is a superior court, the earlier observations regarding the Supreme Court's power to try unindicted misdemeanor cases applies equally to County Court.
This being said, the undersigned would, out of an abundance of caution, also rely on the view expressed in People v Darling (50 AD2d 1038 [3d Dept 1975]) that the Constitution's grant to the Supreme Court of general original jurisdiction in law and equity (NY Const. Art. VI, §7) conveys to the Supreme Court the constitutional authority to try misdemeanor cases, an authority which cannot be constitutionally curtailed by the Legislature. In Darling, following arrests of two individuals for intoxication related offenses, an arraignment was conducted by a Supreme Court Justice at his home. At this arraignment, held without the presence of anyone from the District Attorney's office, the Supreme Court Justice accepted guilty pleas and imposed sentences. While the Third Department did not condone this procedure, it found it to be jurisdictionally valid. It concluded that the Supreme Court Justice had, under the State Constitution, the jurisdiction to conduct the preliminary proceeding and to conduct the criminal actions.
The Court of Appeals cited, but did not expressly adopt Darling in its Correa decision (see Correa, supra, 15NY3d at 229, 233). However, the Court did state that the Constitution, with few exceptions, vests the Supreme Court with the power to hear any case that any other court in the Unified Court System could hear and nothing in the Constitution imposes any limitation on the power of the Supreme Court to adjudicate misdemeanor charges (id.). "The Legislature cannot by statute deprive [Supreme Court] of one particle of its jurisdiction, although it may grant concurrent jurisdiction to some other court" (id. at 229, citing Pollicina v Misericordia Hosp. Med. Ctr., 82 NY2d 332, 339 [1993], quoting Matter of Malloy, 278 NY 429, 432 [1938]).
Thus, by both statute and Constitution, the undersigned may appropriately remove this case from the Town Court and transfer it to the Supreme Court. With all due respect to the Town Court and the able Town Justice, the undersigned believes that the administration of justice requires the transfer. The criminal court facilities in the County Courthouse in White Plains are modern and well-equipped to handle the demands of a high-profile criminal trial; such trials are frequently conducted. The courtrooms are spacious, there are separate pathways for juror and public access, there are distinct jury deliberation areas, there are large counsel tables, appropriate witness and jury boxes, and amplification systems. There is appropriate security and parking.
In discussions with counsel, it was acknowledged that a trial by jury in the Supreme Court in White Plains would mean the use of a county-wide jury pool, rather than a town-limited jury pool. Defense counsel acknowledged this and accepted it.
The undersigned also perceives that, because the alleged offense is claimed to have been committed on an interstate highway and a state highway traveled frequently by persons who are not residents of North Castle, and because the alleged conduct had or could have had impacts beyond North Castle's borders, it is appropriate for this matter to be tried at the county-level.
The undersigned will provide for the random assignment of this case to a Supreme Court (Acting) Justice who regularly presides over criminal trials. While the undersigned finds it inappropriate to require that the trial commence at any fixed date, the undersigned again acknowledges the prosecution's observation that this case has been pending for some 17 months. It is respectfully urged that the trial of this action commence at as early a date as is possible.
CONCLUSION
The undersigned concludes, for the reasons stated, that the administration of justice will be promoted if this particular case is removed from the Town Court of the Town of North Castle and transferred to the Supreme Court of the State of New York, County of Westchester, for trial. Accordingly, it is hereby
ORDERED that the case captioned People v Kerry Kennedy, Docket No. 1207010, presently pending in the Town Court of the Town of North Castle, County of Westchester, is removed from the said Town Court and transferred and assigned to the Supreme Court of the State of New York, County of Westchester; and it is further
ORDERED that all original papers and files in the said case shall be transferred by the Clerk of the Town Court of the Town of North Castle forthwith to the Chief Clerk of the Supreme and County Courts, Westchester County; and it is further
ORDERED that the Chief Clerk of the Supreme and County Courts, Westchester County, shall forthwith randomly assign the said case to any Justice of the Supreme Court (including Court of Claims Judges and Westchester County Court Judges who are designated as Acting Supreme Court Justices) regularly assigned to preside over criminal matters pursuant to the 2014 Annual Order for the Ninth Judicial District; and it is further
ORDERED that any other, further or different relief requested herein is denied.
Dated: January 15, 2014
White Plains, New York
Hon. Alan D. Scheinkman
Justice of the Supreme Court
Administrative Judge, Ninth Judicial District