        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

122
OP 12-01563
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, SCONIERS, AND WHALEN, JJ.


IN THE MATTER OF SANDRA DOORLEY,
PETITIONER-PLAINTIFF,

                    V                                OPINION AND ORDER

HONORABLE JOHN L. DEMARCO, HONORABLE JOHN R.
SCHWARTZ, DALANA J. WATFORD, CRIMINAL DEFENDANT,
AND ANNIE PEARL PUGH, CRIMINAL DEFENDANT,
RESPONDENTS-DEFENDANTS.


SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (KELLY CHRISTINE WOLFORD
OF COUNSEL), PETITIONER-PLAINTIFF PRO SE.

HONORABLE JOHN L. DEMARCO, ROCHESTER, RESPONDENT-DEFENDANT PRO SE.

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES ECKERT OF
COUNSEL), FOR RESPONDENTS-DEFENDANTS DALANA J. WATFORD AND ANNIE PEARL
PUGH.

CYRUS R. VANCE, JR., NEW YORK CITY (VICTORIA M. WHITE OF COUNSEL), FOR
DISTRICT ATTORNEYS ASSOCIATION OF THE STATE OF NEW YORK, AMICUS
CURIAE.


     Proceeding pursuant to CPLR article 78 and declaratory judgment
action (initiated in the Appellate Division of the Supreme Court in
the Fourth Judicial Department pursuant to CPLR 506 [b] [1]) to compel
respondents Honorable John L. DeMarco and Honorable John R. Schwartz
to comply with CPL 216.00 (1), and for other relief.

     It is hereby ORDERED that said petition/complaint insofar as it
seeks relief in the nature of a writ of prohibition and declaratory
relief is unanimously granted without costs, the petition/complaint
insofar as it seeks relief in the nature of mandamus to compel is
denied, and

     It is ORDERED, ADJUDGED and DECREED that respondents-defendants
Honorable John L. DeMarco and Honorable John R. Schwartz shall admit
only those defendants meeting the criteria set forth in CPL 216.00 (1)
into the judicial diversion program.

     Opinion by CENTRA, J.P.:

                                   I
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                                                         OP 12-01563

     Petitioner-plaintiff, the District Attorney of Monroe County
(petitioner), commenced this original hybrid CPLR article 78
proceeding and declaratory judgment action against respondents-
defendants Honorable John L. DeMarco and Honorable John R. Schwartz
(respondent judges), as well as against respondents-defendants Dalana
J. Watford and Annie Pearl Pugh, both criminal defendants (respondent
defendants). Respondent defendants were charged by indictments with
various criminal offenses and, after arraignment, were accepted in the
judicial diversion program by Judge DeMarco. Respondent defendants’
cases were thereafter transferred to Judge Schwartz. Petitioner
opposes judicial diversion for respondent defendants and seeks, inter
alia, mandamus to compel respondent judges to comply with CPL 216.00
(1), a judgment prohibiting respondent judges from allowing respondent
defendants to participate in the judicial diversion program, and a
judgment declaring that only defendants meeting the criteria set forth
in CPL 216.00 (1) are eligible for the judicial diversion program.
The criminal matters concerning respondent defendants were stayed
pending the outcome of this proceeding/action. We now conclude that
the petition/complaint should be granted in part.

                                  II

     As part of the Drug Law Reform Act of 2009, the New York State
Legislature enacted CPL article 216, which created a judicial
diversion program allowing selected felony offenders, whose substance
abuse or dependence was a contributing factor to their criminal
conduct, to undergo alcohol and substance abuse treatment rather than
be sentenced to a term of imprisonment. After the arraignment of an
“eligible defendant,” an authorized court determines whether to allow
the defendant to participate in judicial diversion (CPL 216.05 [1];
see CPL 216.05 [4]; People v DeYoung, 95 AD3d 71, 73-74).

     CPL 216.00 (1) defines an “ ‘[e]ligible defendant’ ” for judicial
diversion as

          “any person who stands charged in an indictment or
          a superior court information with a class B, C, D
          or E felony offense defined in article two hundred
          twenty or two hundred twenty-one of the penal law
          or any other specified offense as defined in
          subdivision four of section 410.91 of this chapter
          . . . .”

Subdivisions (1) (a) and (b) of CPL 216.00, which do not apply here,
list certain defendants who are not eligible for judicial diversion,
such as defendants with a previous violent felony conviction. Penal
Law articles 220 and 221 relate to controlled substances offenses and
offenses involving marihuana, respectively, and CPL 410.91 sets forth
the parameters for a sentence of parole supervision. Notably, CPL
410.91 (4) was repealed as of April 7, 2009, prior to the effective
date of CPL 216.00; that subdivision of CPL 410.91 had imposed a
requirement that the People consent to a sentence of parole
supervision for a specified offense that was a class D felony. It
appears that the reference to CPL 410.91 (4) was merely a
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                                                         OP 12-01563

typographical error and that the legislature meant to cite CPL 410.91
(5), which lists the specified offenses (see Peter Preiser, Practice
Commentaries, McKinney’s Cons Laws of NY, Book 11A, CPL 216.00, 2012
Cumulative Pocket Part at 69-70). The specified offenses listed in
CPL 410.91 (5) include offenses such as burglary in the third degree
(Penal Law § 140.20) and criminal mischief in the second degree (§
145.10).

     In Monroe County, Judge DeMarco arraigns all felony indictments
containing charges that are not expressly excluded by CPL 216.00 (1)
(a) or (b). If Judge DeMarco determines that a defendant is eligible
for judicial diversion and the defendant wishes to participate in that
program, the case is transferred to Judge Schwartz, who monitors
compliance with the alcohol or substance abuse treatment.

                                 III

     Watford was charged by an indictment with four counts of
falsifying business records in the first degree (Penal Law § 175.10),
three counts of identify theft in the second degree (§ 190.79 [1]),
and one count of identify theft in the third degree (§ 190.78 [1]).
The People alleged that Watford, on various dates in 2010, assumed the
identities of four individuals in order to obtain cable services.
After arraignment, Judge DeMarco ordered Watford to undergo a
substance abuse evaluation over the People’s objection. Watford
thereafter moved for admission into judicial diversion, which the
People opposed. On April 25, 2012, Judge DeMarco granted the motion
and allowed Watford to be admitted into judicial diversion (People v
Watford, 36 Misc 3d 456, 461-462). Watford thereafter pleaded guilty
to the charges in the indictment and signed a judicial diversion
contract. Watford was promised a misdemeanor conviction and a
sentence of no more than three years of probation if she successfully
completed judicial diversion. In the event that Watford failed to
complete judicial diversion, she would be sentenced to an
indeterminate term no greater than 2 to 4 years’ incarceration.
Watford’s case was then transferred to Judge Schwartz to monitor her
compliance with her judicial diversion contract.

     In May 2012, Watford was charged by a second indictment with
identity theft in the second degree (Penal Law § 190.79 [1]). The
People alleged that “on or about and between” January 5 and 9, 2012,
Watford assumed the identity of another individual and obtained in
excess of $500. After arraignment, Judge DeMarco on June 20, 2012
again allowed Watford into judicial diversion. She pleaded guilty to
the charge and signed a judicial diversion contract with the same
terms as the prior contract.

     Pugh was charged by an indictment with promoting prison
contraband in the first degree (Penal Law § 205.25 [1]), assault in
the third degree (§ 120.00 [1]), and petit larceny (§ 155.25). The
People alleged that, on May 12, 2012, Pugh stole property from a
grocery store, caused physical injury to a security guard, and
knowingly and unlawfully introduced a cell phone into the Monroe
County Jail. On August 8, 2012, Judge DeMarco accepted her into
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judicial diversion for the reasons he had outlined in his decision in
the Watford matter. Pugh thereafter pleaded guilty to the charges and
signed a judicial diversion contract. If successful in judicial
diversion, Pugh would receive a misdemeanor conviction and a sentence
of three years’ probation. If unsuccessful, she would receive a
sentence of one year in jail.

                                  IV

     Petitioner commenced this original proceeding/action on August
24, 2012 seeking, inter alia, (1) a judgment pursuant to CPLR 7803
(1), i.e., mandamus to compel, directing respondent judges to deny
respondent defendants’ participation in the judicial diversion
program; (2) a judgment pursuant to CPLR 7803 (2), i.e., writ of
prohibition, prohibiting respondent judges from allowing respondent
defendants to participate in the judicial diversion program; and (3) a
judgment pursuant to CPLR 3001 declaring that only defendants who meet
the criteria of CPL 216.00 (1) are eligible for participation in the
judicial diversion program. Petitioner contended that respondent
defendants were not eligible for judicial diversion because they did
not meet the criteria of CPL 216.00 (1).

     Respondent defendants submitted answers, in which they asserted
that a determination that a defendant is eligible for judicial
diversion is never a ministerial act, and always involves the exercise
of the court’s discretion; the respondent judges did not act in excess
of their jurisdiction or authorized powers; and the outcome of each
case is fact-specific. Watford alleged as an affirmative defense that
the proceeding/action was untimely. Judge DeMarco submitted an answer
and raised three objections: the petition/complaint failed to state a
claim; the claims were not the proper subject of a CPLR article 78
proceeding; and the proceeding/action was time-barred. Judge Schwartz
has elected not to appear.

                                  V

     Initially, we reject the timeliness objection. Petitioner
commenced this hybrid proceeding/declaratory judgment action pursuant
to CPLR article 78 and CPLR 3001, respectively. The statute of
limitations for a proceeding seeking mandamus to compel is four months
(see CPLR 217; Town of Webster v Village of Webster, 280 AD2d 931,
933-934), as it is for a proceeding seeking prohibition (see CPLR 217;
Matter of Holtzman v Marrus, 74 NY2d 865, 866; Matter of Holtzman v
Goldman, 71 NY2d 564, 568 n 1). To determine the statute of
limitations for a declaratory judgment action, we must “examine the
substance of that action to identify the relationship out of which the
claim arises and the relief sought” (Solnick v Whalen, 49 NY2d 224,
229; see Bennett Rd. Sewer Co. v Town Bd. of Town of Camillus, 243
AD2d 61, 66). If the rights of the parties may be resolved in a
different form of proceeding for which a specific limitations period
applies, then we must use that period (see Solnick, 49 NY2d at 229-
230). As explained below, petitioner properly seeks a writ of
prohibition, and thus that four-month statute of limitations also
applies to the declaratory judgment action (see Matter of Riverkeeper,
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                                                         OP 12-01563

Inc. v Crotty, 28 AD3d 957, 960; see generally Walton v New York State
Dept. of Correctional Servs., 8 NY3d 186, 194).

     Judge DeMarco’s decision granting Watford’s motion for admission
into judicial diversion on the first indictment was issued April 25,
2012, and his decision granting her admission into judicial diversion
on the second indictment was made on June 20, 2012. His decision
granting Pugh admission into judicial diversion was made on August 8,
2012. Petitioner commenced this original proceeding/action in this
Court on August 24, 2012, which was within the four-month statute of
limitations, and this proceeding/action is therefore timely.

                                  VI

     “[T]he remedy of mandamus is available to compel a governmental
entity or officer to perform a ministerial duty, but does not lie to
compel an act which involves an exercise of judgment or discretion”
(Matter of Brusco v Braun, 84 NY2d 674, 679; see Matter of Maron v
Silver, 14 NY3d 230, 249, rearg dismissed 16 NY3d 736). A party
seeking mandamus to compel “must have a clear legal right to the
relief demanded and there must exist a corresponding nondiscretionary
duty on the part of the [judge] to grant that relief” (Matter of
Scherbyn v Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 NY2d 753,
757; see Matter of Harper v Angiolillo, 89 NY2d 761, 765).

     We conclude that the remedy of mandamus to compel is not
appropriate here, and thus that part of the petition/complaint seeking
that relief should be denied. The statutory scheme of CPL article 216
establishes that a court has discretion in determining whether to
allow a defendant into the judicial diversion program. For example,
CPL 216.05 (4) provides that when an authorized court determines “that
an eligible defendant should be offered alcohol or substance abuse
treatment . . . , an eligible defendant may be allowed to participate
in the judicial diversion program offered by this article” (emphasis
added). Inasmuch as a court’s duties under CPL article 216 are not
ministerial in nature, mandamus to compel does not apply.

                                 VII

     Because of its extraordinary nature, a writ of prohibition lies
only where there is a clear legal right to that relief (see Matter of
Pirro v Angiolillo, 89 NY2d 351, 356). Prohibition is available when
“a court—in cases where judicial authority is challenged—acts or
threatens to act either without jurisdiction or in excess of its
authorized powers” (Holtzman, 71 NY2d at 569; see Pirro, 89 NY2d at
355). Prohibition does not lie to correct trial errors; the
difference between a trial error and an action in excess of the
court’s power is that the latter impacts the entire proceeding (see
Holtzman, 71 NY2d at 569).

          “When a petitioner seeks relief in the nature of
          prohibition pursuant to CPLR 7803 (2), the court
          must make a two-tiered analysis. It must first
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                                                         OP 12-01563

          determine whether the issue presented is the type
          for which the remedy may be granted and, if it is,
          whether prohibition is warranted by the merits of
          the claim” (id. at 568).

Whether to grant prohibition is within the discretion of the court
(see Matter of Soares v Herrick, 20 NY3d 139, 145; Matter of Rush v
Mordue, 68 NY2d 348, 354).

     Here, petitioner alleges that Judge DeMarco lacked the power to
grant respondent defendants acceptance into judicial diversion and
seeks to prohibit enforcement of his orders. Although the
appealability or nonappealability of an issue is not dispositive (see
Holtzman, 71 NY2d at 570), it is a factor to consider when determining
whether prohibition is an appropriate remedy (see Rush, 68 NY2d at
354; Matter of Doe v Connell, 179 AD2d 196, 198). Here, the People
are unable to appeal a judicial diversion eligibility determination
(see generally CPL 450.20). Moreover, Judge DeMarco’s determinations
affected the entire proceedings inasmuch as respondent defendants were
diverted from the normal criminal proceedings. We therefore conclude
that petitioner has a clear legal right to the relief of prohibition.

     We now consider whether Judge DeMarco acted in excess of his
authorized powers in a matter over which he has jurisdiction. CPL
216.00 (1) provides as follows:

          “ ‘Eligible defendant’ means any person who stands
          charged in an indictment or a superior court
          information with a class B, C, D or E felony
          offense defined in article two hundred twenty or
          two hundred twenty-one of the penal law or any
          other specified offense as defined in subdivision
          four of section 410.91 of this chapter, provided,
          however, a defendant is not an ‘eligible
          defendant’ if he or she:

               “(a) within the preceding ten years,
               excluding any time during which the offender
               was incarcerated for any reason between the
               time of commission of the previous felony and
               the time of commission of the present felony,
               has previously been convicted of: (i) a
               violent felony offense as defined in section
               70.02 of the penal law or (ii) any other
               offense for which a merit time allowance is
               not available pursuant to subparagraph (ii)
               of paragraph (d) of subdivision one of
               section eight hundred three of the correction
               law, or (iii) a class A felony offense
               defined in article two hundred twenty of the
               penal law; or

               “(b) has previously been adjudicated a second
               violent felony offender pursuant to section
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                                                         OP 12-01563

               70.04 of the penal law or a persistent
               violent felony offender pursuant to section
               70.08 of the penal law.

          “A defendant who also stands charged with a
          violent felony offense as defined in section 70.02
          of the penal law or an offense for which merit
          time allowance is not available pursuant to
          subparagraph (ii) of paragraph (d) of subdivision
          one of section eight hundred three of the
          correction law for which the court must, upon the
          defendant’s conviction thereof, sentence the
          defendant to incarceration in state prison is not
          an eligible defendant while such charges are
          pending. A defendant who is excluded from the
          judicial diversion program pursuant to this
          paragraph or paragraph (a) or (b) of this
          subdivision may become an eligible defendant upon
          the prosecutor’s consent.”

     Thus, the first paragraph of CPL 216.00 (1) lists who is an
“ ‘[e]ligible defendant’ ” for acceptance into judicial diversion. It
is undisputed that respondent defendants were not charged with any
offenses under Penal Law §§ 220 or 221, or any specified offense in
CPL 410.91. In our opinion, that ends the inquiry, and respondent
defendants are not eligible for judicial diversion. It is well
settled that “ ‘[w]here the language of a statute is clear and
unambiguous, courts must give effect to its plain meaning’ ” (People v
Kisina, 14 NY3d 153, 158; see People v Williams, 19 NY3d 100, 103).
Likewise, “statutory interpretation always begins with the words of
the statute” (People v Levy, 15 NY3d 510, 515).

     Despite the unambiguous language of the statute, Judge DeMarco
chose to examine the nature and purpose of the statute and concluded
that the proper interpretation of the statute was to permit respondent
defendants entry into judicial diversion (Watford, 36 Misc 3d at 457-
461). Specifically, Judge DeMarco found that, because respondent
defendants were not ineligible for judicial diversion pursuant to CPL
216.00 (1) (a) and (b), it was within his discretion to determine
whether they were eligible for judicial diversion, even though they
also did not qualify for that program pursuant to the criteria set
forth in CPL 216.00 (1) and 410.91 (5) (Watford, 36 Misc 3d at 458).
That was error. “ ‘[C]ourts must construe clear and unambiguous
statutes as enacted and may not resort to interpretative contrivances
to broaden the scope and application of the statutes’ ” (People v
Pagan, 19 NY3d 368, 370). “Because the clearest indicator of
legislative intent is the statutory text . . . , and the text of [CPL
216.00 (1)] is clear and unambiguous with respect to the matter in
question, we need not explore the legislative history behind that
statute . . . in an attempt to discern a contrary intent” (People v
Skinner, 94 AD3d 1516, 1518 [internal quotation marks omitted]).

     Simply put, had the legislature intended all nonviolent offenders
who committed crimes because of their drug addiction to be eligible
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                                                         OP 12-01563

for judicial diversion, it could have easily so stated. “It is not
allowable to interpret what has no need of interpretation, and when
the words have a definite and precise meaning, to go elsewhere in
search of conjecture in order to restrict or extend the meaning . . .
Courts cannot correct supposed errors, omissions or defects in
legislation” (Meltzer v Koenigsberg, 302 NY 523, 525 [internal
quotation marks omitted]).

     Respondent defendants contend that the statute is ambiguous
because it refers to CPL 410.91 (4), which was repealed at the time
CPL 216.00 was enacted, and thus the statute must be interpreted by
examining the purpose of the legislation. It is true, as pointed out
earlier, that the statute contains what appears to be simply a
typographical error. Instead of referring to CPL 410.91 (5), which
lists specified offenses, it refers to CPL 410.91 (4), which as
respondent defendants correctly note was repealed prior to the
effective date of this statute. We conclude, however, that the defect
does not render the statute ambiguous. Courts have uniformly
interpreted the citation to CPL 410.91 (4) to be a citation to CPL
410.91 (5) (see e.g. People v DeYoung, 95 AD3d 71, 73; People v
Caster, 33 Misc 3d 198, 200; see also Peter Preiser, Practice
Commentaries, McKinney’s Cons Laws of NY, Book 11A, CPL 216.00, 2012
Cumulative Pocket Part at 69-70).

     Respondent defendants also object to a plain reading of the
statute because such a reading would give prosecutors sweeping
authority to indict individuals only for crimes that would render them
ineligible for judicial diversion, and the intent of the legislature
was to give courts the discretion to decide who should be allowed into
judicial diversion. Judge DeMarco was also troubled by that prospect
(Watford, 36 Misc 3d at 460 [“it is incomprehensible that the
legislature intended to give prosecutors, rather than judges, the
final say as to who gets considered for the program and who does
not”]). It is well settled, however, that prosecutors have “broad
discretion to decide what crimes to charge” (People v Urbaez, 10 NY3d
773, 775; see People v Lawrence, 81 AD3d 1326, 1326, lv denied 17 NY3d
797). There is no indication in this case that the prosecutor sought
to indict respondent defendants with only non-eligible offenses. In
any event, even if we disagreed with the People’s exercise of
discretion, that is not a basis for a court to “exceed its legal
authority and base [its determination of] eligibility [for judicial
diversion] upon an unindicted charge” (Caster, 33 Misc 3d at 204).

     Thus, we conclude that, by refusing to comply with the plain
language of CPL 216.00 (1), Judge DeMarco acted in excess of his
authority in matters over which he has jurisdiction (see Matter of
Green v DeMarco, 87 AD3d 15, 20; Matter of Cosgrove v Ward, 48 AD3d
1150, 1151).

                                 VIII

     Finally, we agree with petitioner that she is also entitled to
declaratory relief (see Green, 87 AD3d at 20). “Although a
declaratory judgment often revolves around a particular set of facts,
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[t]he remedy is available in cases where a constitutional question is
involved or the legality or meaning of a statute is in question and no
question of fact is involved” (Matter of Morgenthau v Erlbaum, 59 NY2d
143, 150, cert denied 464 US 993 [internal quotation marks omitted]).
Additionally, the “criminal court’s ruling must have an obvious effect
extending far beyond the matter pending before it so that it is likely
that the issue will arise again with the same result in other cases”
(id. at 152). Judge DeMarco relied on his decision in Watford in
similarly determining that Pugh was entitled to judicial diversion
even though she was not charged with an eligible offense. Thus, “it
can be assumed that the issue presented here will recur in other
prosecutions and that [Judge DeMarco] will decide the issue in the
same way” (Green, 87 AD3d at 20).

                                  IX

     Accordingly, we conclude that those parts of the
petition/complaint seeking relief in the nature of a writ of
prohibition and declaratory relief should be granted and that part of
the petition/complaint seeking relief in the nature of mandamus to
compel should be denied. Consequently, respondent judges should be
prohibited from granting respondent defendants’ motions to be allowed
to participate in judicial diversion, from accepting their guilty
pleas and their judicial diversion contracts, and from taking any
further action on respondent defendants’ cases in judicial diversion.
Further, a judgment should be entered declaring that respondent judges
admit only those defendants meeting the criteria set forth in CPL
216.00 (1) into the judicial diversion program.




Entered:   March 22, 2013                      Frances E. Cafarell
                                               Clerk of the Court
