People v. Petgen

¶1dissents and votes to reverse in the following memorandum. Mikoll, J. (dissenting). I respectfully dissent. CPLR 2221 requires that a motion to modify or vacate an order shall be made, on notice, to the Judge who signed the order unless he is unable to hear it. The statute reflects the sound policy that Judges shall not pass on or review a matter already passed upon by another Judge of equal authority or co-ordinate jurisdiction. The rule is intended to encourage finality, to avoid Judge-shopping and the confusion and uncertainty that results from professional conflicts. It matters not whether the decision is correct. Until it is reversed on appeal or set aside, it is conclusive. In the instant case, defendant sought and secured from Judge Fromer on January 25, 1980, an order to file suppression of evidence motions pursuant to CPL article 710. One week later, on February 2,1980, the People sought reargument of that motion before another Judge of the same court, Judge Battisti. The affidavit in support of the motion contains the statement of the District Attorney that he has been “informed that the Hon. John J. Fromer has disqualified himself from presiding at the trial of this action and therefore should not have ruled on defendant’s motion for leave to file late motions.” The majority concludes from this statement that Judge Fromer was unable to hear the motion and; therefore, it was proper for Judge Battisti to *953proceed. The equivocal statement of the District Attorney, based as it was on hearsay, can hardly be the exceptional situation contemplated in CPLR 2221 to excuse the wisdom of the policy that statute enunciates. The District Attorney makes the further statement that it was “improper” for Judge Fromer to pass on the original motion. However, neither his affidavit nor the subsequent oral argument before Judge Battisti sheds any light on what legal impropriety was involved in Judge Fromer’s presiding at the hearing on such motion. Under such circumstances, it was improper for a Judge of coordinate jurisdiction to rule on the wisdom of his associate’s decision. Judge Battisti violated the “law of the case” doctrine and, therefore, the judgment should be reversed (People v Bauer, 36 AD2d 888; People v Canna, 35 AD2d 1062). There is a further ground for reversal of the judgment in this case. The record discloses gross neglect by defendant’s prior defense counsel in protecting defendant’s interests. The record indicates that defendant had a meritorious claim for a suppression motion. Defense counsel failed to make the standard suppression motion in a case involving a purported warrantless search not incident to any arrest, and where the People intended to offer defendant’s oral statements made to police without benefit of counsel. His former attorney’s failure to make such critical motions and his total failure to do anything to prepare for trial and to protect the interests of this defendant denied defendant his fundamental constitutional right to effective assistance of counsel (People v Droz, 39 NY2d 457). The judgment should be reversed.