Citation Numbers: 117 Misc. 2d 518
Judges: Stolarik
Filed Date: 1/13/1983
Status: Precedential
Modified Date: 2/5/2022
On December 15, 1982, a copy of a writ of habeas corpus ad testificandum was delivered to this court by the United States Attorney for the Southern District of New York. The writ, served upon the Sheriff of Rockland County, called for the production of Samuel Brown (one of the defendants in the above-captioned indictments) before a Federal Grand Jury and further directing that upon the completion of his testimony, that he be returned “to such place as you are directed by this Court.” At that time, the court advised the United States Attorney that it would take no position on the writ until such time as the attorney for the defendant Brown had an opportunity to confer with him. After such a conference had been accomplished (and more particularly, on January 6,1983), there was another appearance involving the United States Attorney, the District Attorney of Rockland County, the defendant Brown and his attorney, and also appearances on behalf of the other defendants named in the within indictments. (These later appearances were occasioned by the existence of a previously filed CPLR article 78 proceeding and a consequent ruling of this court that no defendant could be removed from the custody of the Sheriff of Rockland County without the approval of the court.) It should be noted, also, that there has been no appearance by the Sheriff of Rockland County with regard to the writ (or the article 78 proceeding) but with regard to the other parties afore-mentioned, the United States Attorney seeks compliance with the writ, the District Attorney opposes same, the defendant Brown wishes to comply with the writ and the other defendants not only are reaffirming their opposition under the article 78 proceeding, but also claim they have standing to oppose the transfer as parties in the criminal action and move for a hearing to determine the degree of co-operation between the United States Attorney and the District Attorney pursuant to People v Isaacson (44 NY2d 511).
the writ
The writ of habeas corpus ad testificandum provides for the appearance of the defendant Brown before a Federal Grand Jury. The initial question before the court is
THE ARTICLE 78 APPLICATION
The court has previously entertained an article 78 application filed by the defendants, seeking to prevent the Sheriff from transferring the defendants herein to another place of incarceration. The Sheriff indicated at that time that there were no present plans to move the defendants but the court kept the application “open” in the sense that it directed that no defendant was to be moved without the consent of the court. The Sheriff has complied with this restriction and has sought “clearance” from the court on occasions when a defendant had to be moved. .(More particularly, the court has removed its restriction to allow another defendant herein to appear in Federal District
APPLICATION FOR HEARING
In conjunction with their opposition to compliance with the writ, defendants make application for a hearing to determine the extent of the co-operation between the offices of the State and Federal prosecutors. (People v Isaac-son, supra.) They view defendant Brown’s desire to speak with Federal authorities as a “fait accompli”, and use expressions such as “parallel prosecution” and allusions to the “Sixth Amendment wall” being “breached” to support their application for a hearing. They also cite the recent case of People v Slochowsky (116 Misc 2d 1069), claiming a situation analogous to what is before the court at this time. The court finds this case inapposite to the facts before the court. In Slochowsky (supra) the decision dealt largely with a motion to quash a subpoena served on the District Attorney in an ongoing Isaacson hearing. There was little or no discussion of what circumstances precipitated the hearing, or the factual considerations weighed by the court in granting the hearing. In the instant case, defendants show no facts which would indicate that there is (or even might be) a pattern of misconduct on the part of the prosecution herein. Absent such a showing, the court is under no compulsion to direct a hearing. Unwarranted assumptions, speculation, and surmise do not form a proper basis for the court to direct further inquiry. Accordingly, the motion is denied.
CONCLUSIONS
It is clear that the court may not be able to intervene, per se, in the problems presented by the service of the writ,
(1) that legal custody of the defendant Brown remain in the State of New York;
(2) that defendant Brown be returned by a date specified, or if said date is to be changed, that it be changed with the consent and approval of the District Attorney of Rockland County;
(3) that the Sheriff of Rockland County be a party to any modification of the writ and/or any stipulation to modify same.