Opinion
03867-2008.
Decided June 14, 2010.
Amy Hozer, Esq., New York Legal Assistance Group, New York, New York.
Murray Richman, Esq., Bronx, New York, Office of the District Attorney, Bronx, New York, Domestic Violence Bureau, ADA Amy Litwin.
For the reasons that follow, the New York Legal Assistance Group (NYLAG)'s motion to file a notice of appearance on behalf of the complaining witness is denied.
Procedural History
Defendant is charged with Attempted Murder in the Second Degree (PL §§ 110/125.25[1]) and other related charges. The People allege that on September 11, 2008, in Bronx County, defendant, with the intent to cause the death of a person, did attempt to cause the death of Mimoza Smakaj, by repeatedly stabbing her with a knife. Defendant is represented by the law office of Murray Richman, Esq. The indictment is being prosecuted by assistant District Attorney Amy Litwin of the Office of the Bronx County District Attorney.
On February 22, 2010, a lawyer-member of NYLAG appeared in Bronx County Supreme Court, Criminal Division, Part DV, and attempted to file a "Notice of Appearance and Assertion of Victim Rights" on behalf of Mimoza Smakaj. This Court did not accept the filing of the notice of appearance. NYLAG then filed the instant memorandum of law, arguing that Mrs. Smakaj "has the right to appear to offer her opinion on matters relating to her right to protection during and after the criminal proceedings, NY Exec. L. § 646-a(2)(c), pretrial conditions of release, and dispositional alternatives. NY Exec. L. § 647(1)" (Hozer Memo at pg 1).
The People did not respond in writing to NYLAG's application and instead made the following record:
First . . . I'd like to point out on the record that there is actually no motion before the Court, but rather a memoranda [ sic] of law from a party that does not have standing on this case. There are only two parties before the Court, and only two parties in any criminal litigation in the State of New York, the People, who represent the victims in our cases, as well as the accused who is represented by his or her assigned or retained attorney. Neither party has made a motion in support of a private citizen becoming a party to this litigation.
It does appear that New York Legal Assistance Group seeks to take place [ sic] that private citizens will become a party to a criminal prosecution, to assert interests, and to impose obligations on the People, and the defendant and on the Court. To permit this organization to appear on the record will be opening the door, Your Honor, to any party who claims to have an interest in the criminal action. The job and discretion of a prosecutor can't be delegated to private citizens, and there are no provisions in New York Law to the contrary.
The People certainly have no objection to the New York Legal Assistance Group providing services to crime victims who request their assistance, nor do the People have any objection to the services including observation of court appearances, but again, we do not believe that New York Legal Assistance Group has the right to appear on the record on a criminal case.
(Minutes 4/19/10 pp. 3-4). ADA Litwin also noted that she had spoken with the complaining witness, who was aware that Ms. Litwin was "able and available to answer all of her questions and address her concerns regarding the criminal prosecution" ( id. at pp. 4-5). Defendant, represented that day by Renee Hill, of counsel to the law office of Murray Richman, also declined to reply in writing and took the position that "the complaining witness or victim in this case, that her interests are represented by the District Attorney's Office" (Minutes 4/19/10 pg 3).
Analysis
NYLAG made a similar application before the Honorable Matthew J. D'Emic, in the case of People v. Robinson, ___ NYS2d ___, 2010 WL 1254666, 2010 NY Slip Op 29112, (Sup Ct Kings County 2010), which was also opposed by the People and by defendant. In denying the motion, Judge D'Emic held:
The basis of the motion is Article 23 of the Executive Law entitled Fair Treatment Standards for Crime Victims.' That article, as well as rules promulgated under it by the Chief Administrative Judge of the Courts, generally outlines information to be provided to crime victims as well as insuring that victims' views on matters such as bail, pleas and other dispositions be considered by the court. Nothing in the article, however provides for formal appearances by complaining witnesses or private counsel on their behalf in criminal prosecutions. To the contrary, the law of this state obligates that district attorney of each county "to prosecute all crimes and offenses cognizable to the courts of the county for which he shall be elected . . ." (County Law §§ 700, 927). The courts of this state have interpreted these provisions to bar private prosecutions of crimes and the delegation of this duty ( People v. Di Falco, 44 NY2d 482, 406 NYS2d 279, 377 NE2d 732; Sedore v. Epstein , 56 AD3d 60 , 864 NYS2d 543; Kinberg v. Kinberg , 48 AD3d 387 , 853 NYS2d 27; People v. Meminger, 121 Misc 2d 953, 469 NYS2d 323; People v. Rogers, 205 Misc 2d 1106, 131 NYS2d 622).
People v. Robinson, 2010 WL 1254666 at *1. Judge D'Emic's analysis applies with equal force in this case.
Similarly, NYLAG's reliance on CPL §§ 380.50, 390.20, 390.30, 390.50; NY Penal Law § 60.27; and NY Executive Law § 620, does not require this Court to accept its notice of appearance in this case. These sections provide for the input of the views of victims in certain situations, specifically, the sentence of defendant ( see CPL §§ 380.50, 390.20, 390.30 and 390.50), restitution and reparation ( see PL § 60.27) and aid, care and support provided by the state for victims of crimes ( see NY Executive Law § 620). They do not permit the victim to become a party to the criminal prosecution. Indeed, "[t]he Criminal Procedure Law provides no mechanism for a nonparty to intervene or be joined in a criminal case" ( People v. Combest , 4 NY3d 859 [dismissing nonparty's motion for reargument because nonparty has no right to intervene in criminal appeal, despite its claim that it had a direct interest in the outcome of the appeal).
People v. Jovanovic, 176 Misc 2d 729 (Sup Ct New York County 1997), rev'd on other grounds, 263 AD2d 182 (1st Dept 1999), on which NYLAG relies, does not mandate the granting of the instant motion. In Jovanovic, the Court accepted and considered a motion and memorandum of law in support, submitted by counsel to the complainant, to oppose disclosure of the complainant's e-mails turned over to the court for in camera review by Columbia University in response to defendant's subpoena duces tecum. The Court noted that the complainant was not a party to the criminal action against Jovanovic, but held that, because she was affected by process of a court, she had standing to challenge the dissemination of e-mails between herself and third persons ( id. at 731). No such circumstance exists here. See also People v. Desmond, 98 AD2d 728 (2d Dept 1983) (when recipient of subpoena duces tecum claims a privilege with respect to the production of subpoenaed evidence, a motion to quash made prior to the witness' appearance is the appropriate procedure; case remitted to Criminal Term to afford lawyer-recipient of subpoenaopportunity to establish that attorney-client privilege prevented disclosure of requested material).NYLAG's reliance on People v. Nieves , 2 NY3d 310 (2004), People v. Cole, 1987 WL 14533 (County Ct Genesee County 1987), and People v. Sales, 129 Misc 2d 731 (Sup Ct Kings County 1985), is similarly unpersuasive. In Nieves, the Court of Appeals determined that the permanent orders of protection issued at sentencing were among the orders and rulings that a defendant could challenge in an appeal from a judgment of conviction, while noting that the better practice is to have the sentencing court retain jurisdiction over the matter so that a defendant seeking an adjustment of such an order can request relief from the issuing court. ( People v. Nieves, 2 NY3d at 316-17). In Sales, a crime victim whose views were not available when the pre-sentence report was prepared asked the District Attorney if she could address the sentencing court to give her first-hand account of the crime and its effect on her ( People v. Sales, 129 Misc 2d at 731-31). This Court has no reason to believe that the District Attorney will fail to advise the court of the complainant's views about any plea offer or to notify the court in the event she wishes to make a victim-impact statement at the appropriate time. Finally, in Cole, the trial court held a pre-sentence conference at the request of the victim in conjunction with the crime victim-related agency, but nothing in the decision suggests that the victim was afforded standing as a party to the criminal action. Moreover, and more importantly, the court in Cole rejected a negotiated plea arrangement despite the acceptance of its terms by defendant, the People and the victim, because "[s]trong public policy in this state mandates that the court, detached from outside pressures often brought to bear on the prosecution and defense, make a separate evaluation as to the appropriateness of a negotiated plea following specific guidelines. Essentially the court has an independent obligation to assure that the correctional disposition reached by the parties is appropriate and adequately protects the public interests." ( People v. Cole, 1987 WL 14533 at *2) (citations omitted).
To the extent that NYLAG describes permitting victims to appear on the record at court dates as the "most efficacious way of complying" with the various statutes discussed above, the Court disagrees. As Judge D'Emic so cogently stated in Robinson:
For the public prosecutor is the representative not of any ordinary party to a controversy but of the ultimate sovereign, the People of the State of New York. That sovereign delegates to its elected prosecutors, the state's broad power of investigation, prosecution, negotiation of plea bargains, recommendations as to punishment, and decisions whether to seek, oppose, accept, appeal or challenge judicial rulings and actions. Those duties specifically include providing complaining witnesses with information about their rights and insuring compliance with the obligation of the court in considering complainants' views on specific matters (Executive Law § 646-a; Rules of the Chief Administrator § 129.3[g]). To allow the entry of a private interest, even the interest of an honest and aggrieved victim into this process, could expose all of those areas to intolerable prejudicial influence, where the participant in the prosecution is the servant of his or her interests and not exclusively "the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer" ( Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314).
People v. Robinson, 2010 WL 1254666 at *1.
For all these reasons, NYLAG's motion is denied.
This opinion constitutes the decision and order of the court.