SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

785 

OP 11-00353 

PRESENT: SCUDDER, P.J., CARNI, SCONIERS, AND GREEN, JJ. 

 

 

IN THE MATTER OF MICHAEL C. GREEN, IN HIS 

OFFICIAL CAPACITY AS DISTRICT ATTORNEY OF 

MONROE COUNTY, PETITIONER-PLAINTIFF, 

V OPINION AND ORDER

HONORABLE JOHN DEMARCO, A JUDGE OF THE COUNTY 

COURT, COUNTY OF MONROE, STATE OF NEW YORK,

ELLIS MECHALLEN, CRIMINAL DEFENDANT, AND 

FERNANDO LOPEZ, CRIMINAL DEFENDANT, 

RESPONDENTS-DEFENDANTS. 

 

MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (LESLIE E. SWIFT OF

COUNSEL), PETITIONER-PLAINTIFF PRO SE. 

PHILLIPS LYTLE LLP, BUFFALO (TIMOTHY W. HOOVER OF COUNSEL), FOR

RESPONDENT-DEFENDANT HONORABLE JOHN DEMARCO, A JUDGE OF THE COUNTY

COURT, COUNTY OF MONROE, STATE OF NEW YORK. 

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES ECKERT OF

COUNSEL), FOR RESPONDENT-DEFENDANT ELLIS MECHALLEN, CRIMINAL

DEFENDANT. 

EASTON THOMPSON KASPEREK SHIFFRIN LLP, ROCHESTER (DONALD M. THOMPSON

OF COUNSEL), FOR RESPONDENT-DEFENDANT FERNANDO LOPEZ, CRIMINAL

DEFENDANT. 

Proceeding pursuant to CPLR article 78 (initiated in the

Appellate Division of the Supreme Court in the Fourth Judicial

Department pursuant to CPLR 506 [b] [1]) seeking to prohibit the

conducting of certain proceedings. 

It is hereby ORDERED that the petition/complaint is unanimously

granted in part without costs by prohibiting respondent-defendant

Honorable John DeMarco from contemporaneously conducting a suppression

hearing and bench trial on the indictment regarding respondentdefendant Fernando Lopez, the petition/complaint insofar as it seeks

relief regarding respondent-defendant Ellis Mechallen is dismissed as

moot, the petition/complaint insofar as it seeks relief in the nature

of mandamus to review is denied, and 

It is ORDERED, ADJUDGED and DECREED that respondentdefendant Honorable John DeMarco shall not, even with the

consent of a defendant, commence a trial prior to the
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OP 11-00353 

determination of pretrial motions as required by CPL 710.40

(3).

Opinion by SCUDDER, P.J.: Petitioner-plaintiff (hereafter,

petitioner) commenced this original hybrid CPLR article 78

proceeding/declaratory judgment action seeking three forms of relief: 

a judgment pursuant to CPLR 7803 (3), mandamus to review, concluding

that the determination of respondent-defendant Honorable John DeMarco

(hereafter, respondent) to conduct, contemporaneously, the suppression

hearings and bench trials in the criminal matters involving

respondents-defendants Ellis Mechallen and Fernando Lopez was, inter

alia, in violation of lawful procedure; a judgment pursuant to CPLR

7803 (2), a writ of prohibition, prohibiting respondent from

conducting such joint proceedings; and a judgment pursuant to CPLR

3001 declaring that conducting the joint hearings/trials is in

violation of CPL 710.40 (3), which requires that a court determine

pretrial suppression motions prior to the commencement of a trial. 

The matters concerning Mechallen and Lopez were stayed pursuant to

CPLR 7805 pending the outcome of this proceeding. We note at the

outset, however, that Mechallen subsequently withdrew her suppression

motion and the bench trial was conducted. Contrary to the contentions

of petitioner and Mechallen, we conclude that the allegations in the

petition with respect to Mechallen are moot, and those parts of the

petition/complaint seeking relief with respect to her therefore should

be dismissed. We further conclude that petitioner is not entitled to

relief in the nature of mandamus to review pursuant to CPLR 7803 (3),

inasmuch as the actions of respondent do not constitute an

administrative action made in the exercise of discretion (see

generally Kraham v Mathews, 305 AD2d 746, lv denied 100 NY2d 512), and

thus that part of the petition/complaint seeking that relief should be

denied.

The issues properly before us are whether a writ of prohibition

should be issued prohibiting respondent from conducting a joint

suppression hearing and bench trial in the matter involving

respondent-defendant Fernando Lopez and whether petitioner is, in

addition, entitled to declaratory relief to that effect.

Writ of Prohibition

CPL 710.40 (3) provides that, “[w]hen a motion is made before

trial, the trial may not be commenced until determination of the

motion.” Petitioner alleges that, if respondent is permitted to

proceed with a joint suppression hearing/trial in the Lopez matter in

contravention of CPL 710.40 (3), the People will be denied the right

to appeal from an order granting the suppression motion inasmuch as

their right to appeal is limited to appeal from suppression orders

that are entered prior to trial (see CPL 450.20 [8]). The issue

before us therefore is whether respondent’s determination to conduct,

contemporaneously, the suppression hearing and bench trial in the

Lopez matter contravenes CPL 710.40 (3) and thus is in excess of

respondent’s authorized powers in a matter over which he has

jurisdiction (see CPLR 7803 [2]). 
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OP 11-00353 

It is axiomatic that relief in the nature of a writ of

prohibition “is available . . . to prevent a court from exceeding its

authorized powers in a proceeding over which it has jurisdiction [only

where] . . . petitioner has established a clear legal right to that

relief” (Matter of Pirro v Angiolillo, 89 NY2d 351, 355-356 [internal

quotation marks omitted]; see Matter of Rush v Mordue, 68 NY2d 348,

352-353). Whether to grant the extraordinary remedy of a writ

prohibiting respondent from conducting suppression hearings and bench

trials contemporaneously is left to the sound discretion of this Court

(see Rush, 68 NY2d at 354). Simply stated, if petitioner has a clear

legal right to relief and respondent is exceeding his authorized

powers in this matter, then this Court has the discretion to grant a

writ of prohibition (see Pirro, 89 NY2d at 355-356; Matter of Holtzman

v Goldman, 71 NY2d 564, 569). In making our determination, we may

consider factors that include the gravity of harm and whether

respondent’s actions may be adequately corrected by other means at law

or in equity (see Pirro, 89 NY2d at 359; Rush, 68 NY2d at 354).

Addressing first whether petitioner, on behalf of the People, has

a clear legal right to require respondent to comply with CPL 710.40

(3), we conclude that he does. As previously noted, petitioner

alleges that the joint hearing/trial is in contravention of CPL 710.40

(3) and that, in the event that respondent grants the suppression

motion of Lopez in the course of that joint proceeding, the People

will be prohibited from appealing from the suppression order because

it was not entered prior to trial (see CPL 450.20 [8]; see generally

People v Garofalo, 71 AD2d 782, appeal dismissed 49 NY2d 879). 

Although the “appealability or nonappealability of an issue is not

dispositive” (Holtzman, 71 NY2d at 570), in both Pirro and Holtzman

the Court of Appeals determined that the respective District Attorneys

who challenged the failure of the trial judge to comply with a

statute, and who lacked the right to appeal from the resulting orders,

had a clear legal right to relief. In Pirro, the court improperly

altered a sentence after service of the sentence had begun in

contravention of CPL 430.10 (see Pirro, 89 NY2d at 358-359) and, in

Holtzman, the court improperly dismissed the indictment when the

People were unable to proceed on the scheduled trial date because they

were unable to locate a witness. In both cases, in which the People

lacked a statutory right to appeal from the respective orders, the

Court of Appeals determined that the extraordinary relief of a writ of

prohibition was appropriate. 

Although the instant record reflects that respondent had proposed

to petitioner that he would require criminal defendants to consent to

a mid-trial adjournment of a joint hearing/trial in the event that the

People sought to appeal from an adverse suppression ruling, we

conclude that respondent “cannot rejigger the language or specific

prescriptions of CPL 450.20 (8) . . . without trespassing on the

Legislature’s domain and undermining the structure of article 450 of

the CPL—the definite and particular enumeration of all appealable

orders” (People v Laing, 79 NY2d 166, 172). We therefore conclude

that petitioner has a clear legal right to seek relief in the nature

of a writ of prohibition.
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OP 11-00353 

We must therefore consider whether respondent has acted in excess

of his authority in a matter over which he has jurisdiction by

ordering that the suppression hearing and the bench trial be conducted

contemporaneously. Petitioner concedes that there have been occasions

when the People have consented to a court conducting a joint

suppression hearing/trial. He alleges, however, that respondent may

not deviate from the statutory mandate of CPL 710.40 (3) over the

objection of the People and that, by doing so, respondent has acted in

excess of his authorized powers in a matter over which he has

jurisdiction (see CPLR 7803 [2]). According to respondent, however,

he has properly exercised his discretion in scheduling the joint

hearing/trial with the consent of Lopez. Respondent further alleges

that the determination to conduct joint suppression hearings/trials

with the consent of the defendant has been approved by this Court. 

Although this Court has declined to reverse the respective judgments

of conviction in two prior appeals where the court utilized a joint

hearing/trial procedure (see People v Mason, 305 AD2d 979, lv denied

100 NY2d 563; People v Yousef, 236 AD2d 868, lv denied 90 NY2d 860,

866), there are notable distinctions between those cases and the

instant matter. In Mason and Yousef, the People did not object to the

use of the joint hearing/trial and the respective defendants, who had

consented to the procedure, contended on appeal that the court had

erred in utilizing it. In other words, both defendants sought to have

their proverbial cake and eat it too. Here, however, the People

objected to respondent’s use of a joint hearing/trial as being in

violation of CPL 710.40 (3), and respondent overruled the objection,

thereby foreclosing the People from exercising their right to appeal

pursuant to CPL 450.20 (8) from a potential determination suppressing

evidence that is vital to the prosecution of Lopez. We therefore

conclude that, by refusing to comply with the requirements of CPL

710.40 (3), respondent exceeded his authority in a proceeding over

which he has jurisdiction (see Pirro, 89 NY2d at 355; cf. Matter of

Oglesby v McKinney, 7 NY3d 561, 565).

Declaratory Relief

Petitioner also seeks declaratory relief determining the rights

of the parties with respect to whether respondent may properly conduct

joint suppression hearings/bench trials over the objection of the

People. As the Court of Appeals has noted, “[l]awsuits against judges

should not be common, but there are times . . . where they are

necessary to resolve important issues that could otherwise never reach

an appellate court” (Oglesby, 7 NY3d at 565). We conclude that this

matter presents such a scenario. The record establishes that the

joint hearing/trial is commonly utilized in various courts in Monroe

County, including respondent’s court, both with and without the

consent of the People. Indeed, it is undisputed that in addition to

the criminal matters that are the subject of this proceeding, there is

at least one other matter pending in respondent’s court in which he

has directed that the suppression hearing and the bench trial be

conducted contemporaneously. Thus, based upon the record before us,

it can be assumed that the issue presented here will recur in other

prosecutions and that respondent will decide the issue in the same way

provided that he has the consent of the defendant (see id.; Matter of
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OP 11-00353 

Morgenthau v Erlbaum, 59 NY2d 143, 152, cert denied 464 US 993). We

therefore conclude that declaratory relief is proper. 

Conclusion

Accordingly, we conclude that those parts of the

petition/complaint seeking to prohibit respondent from conducting,

contemporaneously, the suppression hearing and trial in the matter

involving Lopez and seeking a declaration of the rights of the parties

herein should be granted, and that a judgment should be entered

declaring that respondent shall not, even with the consent of a

defendant, commence a trial prior to the determination of pretrial

motions as required by CPL 710.40 (3). 

Entered: June 17, 2011 Patricia L. Morgan

Clerk of the Court