Fludd v. Goldberg

OPINION OF THE COURT Catterson, J. The question raised by this CPLR article 78 proceeding is whether a trial court has “inherent power” to issue orders authorizing the Department of Correctional Services (hereinafter referred to as DOCS) to place an inmate in solitary confinement once the criminal proceeding has terminated by entry of judgment. The criminal prosecution underlying this proceeding was commenced against petitioner Jo van Fludd in May 2005. The petitioner was charged with several counts of forgery on the grounds that he filed a series of false liens under article 1 of the Uniform Commercial Code. The petitioner filed the liens while he was incarcerated for a separate offense.1 The targets of the liens were New York County prosecutors and judges involved in the prosecution of the petitioner’s earlier offense. On May 19, 2005, the petitioner was produced from state prison and arraigned on the false UCC-1 filings indictment. At the arraignment, the court issued an order prohibiting the petitioner from filing UCC-1 statements or any other specified Uniform Commercial Code forms, or civil litigation (except habeas corpus petitions) without leave of the court, and further limited his ability to make telephone calls, send letters, give materials to visitors, and obtain funds from his commissary account. The order also provided for the appointment of a Special Master to monitor the petitioner’s correspondence. The order, by its terms, was to remain in effect during the pendency of the criminal case. On January 20, 2006, the petitioner was convicted — 155 — of three counts of offering a false instrument for filing in the first degree (Penal Law § 175.35), three counts of falsifying business records in the first degree (Penal Law § 175.10), and one count of obstructing governmental administration in the second degree (Penal Law § 195.05). After the petitioner’s conviction, and prior to sentencing, the People sought a subsequent order continuing the specific terms of his incarceration because it was “likely that the defendant [would] continue to engage in his criminal scheme” (emphasis added). On March 13, 2006, the respondent Justice granted the People’s request. Specifically, she announced that she would continue the substance and directives of the May 2005 pretrial order for the duration of the petitioner’s sentence. The order did not include any provision for the petitioner’s placement in solitary confinement. It was not characterized as part of the petitioner’s sentence on his criminal convictions, nor did it provide petitioner with notice of the order, or an opportunity to be heard. Notably, the respondent Justice did not articulate any statutory authority for issuing such an order. The next day, March 14, 2006, the petitioner was sentenced2 and placed in the custody of DOCS. Subsequently, while in custody, the petitioner continued his practice of filing false liens in violation of the March order. The petitioner also used another inmate’s name to mail letters. This is a prison disciplinary offense known as “kiting.” After a hearing officer at the prison sustained the charges against the petitioner for kiting the letters, he was placed in solitary confinement in the prison’s segregated housing unit. Following an automatic administrative hearing held on September 11, 2006, DOCS was notified that regulations regarding placement of inmates in solitary confinement only allow for such placement where the inmate poses a threat or danger to the safety or security of the facility. DOCS then informed the respondent Justice that it could not effectively enforce the court’s March order unless it had a directive from the court to place the petitioner in solitary confinement, and it filed an application for a supplemental order providing it with such authorization. On September 29, 2006, the respondent Justice granted the application. She issued the order ex parte without a hearing. — 156 — She stated, however, that it would be entered without prejudice to a defense motion for vacatur or modification. The order directed, inter alia, that: “DOCS shall take such steps that it deems necessary, including placement of this defendant in restrictive housing, in order to limit his ability to have contact with other inmates through whom he may attempt to send out additional correspondence or whom he may convince to write to other persons on his behalf asking them to send out impermissible materials on his behalf.” Citing her “inherent power” to issue such an order, the respondent Justice stated that “the restrictive confinement ordered herein is essential to that order [the March order] being carried out.” The order was modified by the court on December 5, 2006 to allow the petitioner to contact his attorney. On December 11, 2006, the petitioner brought an order to show cause, seeking vacatur and modification of the March and September orders, on the grounds that the court exceeded the permissible scope of its jurisdiction and authority when it decided to retain control over petitioner’s case after pronouncing sentence. The motion was denied, and the instant article 78 proceeding ensued. The petitioner argues that the respondent Justice lacks jurisdiction to issue orders after petitioner’s sentencing. He further argues that the respondent Justice did not have the authority to direct DOCS to enforce the March order and, in doing so, improperly relied on the court’s inherent power. The Attorney General, appearing for the respondent Justice, argues that the March order was lawful and that she therefore had the inherent authority to do what is reasonably necessary to enforce its provisions by way of the September order. The Attorney General also maintains that DOCS had no plenary rule and that the situation she was presented with was best handled by an ad hoc court order. For the reasons set forth below, we grant the petition. As a threshold matter, it should be noted that the majority and dissent agree that the extraordinary remedy of prohibition is available under the circumstances of this case. Where a court acts or threatens to act either without jurisdiction or in excess of its authorized powers in a proceeding over which it has jurisdiction, the extraordinary remedy of prohibition lies. (Matter of Pirro v Angiolillo, 89 NY2d 351, 355 [1996].) — 157 — The dissent also appears to agree that the respondent Justice exceeded the permissible scope of her jurisdiction and authority when she decided to retain control over the petitioner’s case after pronouncing sentence. Indeed, it is clear that the respondent Justice did not possess the requisite statutory authority to issue the September order which sought to dictate the conditions of the petitioner’s confinement. It is beyond cavil that a criminal action “terminates with the imposition of sentence or some other final disposition in a criminal court of the last accusatory instrument filed in the case.” (CPL 1.20 [16] [c].) The Criminal Procedure Law explicitly prohibits postjudgment interference by trial courts unless the court is specifically authorized by law to do so. (CPL 430.10.) Thus, absent a specific authorization by law, a trial court loses its authority to alter or dictate the terms of a defendant’s sentence or confinement once such sentence has commenced. (See Matter of Van Deusen v Zittell, 88 AD2d 736, 736 [3d Dept 1982] [granting article 78 petition against County Court judge, explaining that “(o)nce petitioner commenced serving his sentence, the court was powerless to interrupt it unless specifically authorized by law to do so”].) Here, the petitioner’s criminal prosecution ended at his sentencing on March 14, 2006. At that point, the jurisdiction of the court terminated and the petitioner was under the control of DOCS. With regard to the September order, the trial court was not entitled to add new penalties to the petitioner’s sentence because the sentence had already commenced. Thus, it is uncontroverted that the trial court violated the clear proscription of CPL 430.10, and exceeded the parameter of the court’s jurisdiction over the petitioner’s criminal action. Significantly, neither of the respondent Justice’s orders (March or September) identified any statutory basis for their authority, nor did they cite to or reference any case law supporting their issuance. The September order did state that “this Court has the inherent power to issue this order” (emphasis added). Saying so, however does not make it so. It is well settled that inherent power is an extremely narrow, carefully circumscribed doctrine. (See Matter of Kisloff v Covington, 73 NY2d 445, 450-452 [1989] [rejecting the idea that a trial court can invoke its inherent authority to reenter a case, postsentencing, as it sees fit].) Inherent power should rarely be exercised because it is not subject to direct democratic controls and thus, there is a danger — 158 — that such power might be wielded arbitrarily or in doubtful cases. (Gabrelian v Gabrelian, 108 AD2d 445, 454 [2d Dept 1985], appeal dismissed 66 NY2d 741 [1985].) A court’s ability to exercise inherent power is very limited during the pendency of a case, and the court’s ability to invoke it after judgment is even more limited. While a case is pending, “gray area situations” may require a court to act in the absence of explicit authority, “so that the adjudicative process can function.” (People v Green, 170 Misc 2d 519, 523, 524 [Sup Ct, Bronx County 1996] [citation and internal quotation marks omitted] [where the court invoked its inherent authority during the course of a pending trial in order to permit testimony at trial].) After a criminal action has terminated by entry of judgment, a court’s exercise of inherent authority is scarcely permitted. (See Matter of Kisloff v Covington, 73 NY2d at 452 [1989] [finding that the entry of judgment foreclosed a trial judge from subsequently correcting the sentence, despite its conceded illegality].) The central question in evaluating the use of inherent powers postjudgment is whether “the application [to the court] seeks new relief not originally contemplated or intended.” (People v Garris, 159 Misc 2d 586, 590 [Dist Ct, Nassau County 1993].) If the court’s function in exercising its authority is essentially ministerial in nature, such action is a permissible use of inherent powers. (Id. at 589 [noting that the court retains the inherent power to correct errors, omissions and oversights made at the time of issuance of its records and judgments in the furtherance of justice]; see also People v Minaya, 54 NY2d 360, 364-365 [1981], cert denied 455 US 1024 [1982] [where court misspoke in pronouncing shorter sentence than that agreed upon by parties, inherent power permitted postjudgment correction].) In contrast, if the court is being asked to impose new restrictions or grant new relief to a party, it cannot do so because those functions lie beyond the realm of its permissible postjudgment activity. (See People v Medina, 35 AD3d 163, 164 [1st Dept 2006], lv denied 8 NY3d 925 [2007] [holding that in the absence of such factors as clerical error, inadvertence and fraud, a court’s power to correct a substantively illegal sentence is purely statutory].) Here, the invocation of inherent authority occurred postjudgment. (See People v Green, 170 Misc 2d 519 [Sup Ct, Bronx County 1996].) Since the petitioner had been sentenced and the case had ended with entry of judgment, the court’s ability to — 159 — invoke the doctrine of inherent authority was essentially limited to correcting ministerial defects and fraud. In light of the fact that the September order sought to impose an additional punishment (solitary confinement) upon the petitioner after judgment had been entered, the respondent Justice’s exercise of inherent power was inappropriate and without legal authority. It appears that the dissent, as well as the respondent Justice, recognize the foregoing. Certainly, the dissent recognizes the narrowness of the inherent authority doctrine and acknowledges the fact that “the order was not issued during the pendency of the case, and was geared toward performing a responsibility which we would expect to have been performed by DOCS.” It is also clear that the respondent Justice is aware that no legal authority exists for the order. None is cited. Instead, the respondent Justice retreats to phrases like “no other option” and “highly unusual” to justify the order. While it is true that harassment of public servants in the manner done by the petitioner is obnoxious, the remedy cannot be to “stretch” the concept of inherent power especially when it is invoked as a means to deal with prospective conduct. The order to place the petitioner in solitary confinement was intended as a means of preventing the petitioner from “kiting” or using his fellow inmates to send out false filings. Yet, it is a bedrock principle of our justice system that incarceration to prevent crime is not permitted prior to a criminal conviction; only a guilty individual can be punished. To allow the court to place the petitioner in solitary confinement because it believes that the petitioner intends to commit further harassment is repulsive and contrary to the whole foundation of our penal system. Our laws punish for past offenses, rather than incarcerate a person to prevent future offenses. (Commissioner of Community Dev. of City of Rochester v Gray, 186 AD2d 1076 [4th Dept 1992] [finding that it was error for a court’s contempt order to provide that future noncompliance will be punished, without further application to the court]; see also Commonwealth v Truesdale, 449 Pa 325, 296 A2d 829 [1972] [taking note of the fact that a person cannot be punished for future conduct, since he can hardly be held responsible for an act not yet committed].) To the extent that DOCS expressed an inability to prevent the petitioner from mailing false filings, there are alternative and proper means of addressing the issue. Indeed, there is nothing to prevent the District Attorney from prosecuting the petitioner anew if he continues the harassment of public of — 160 — ficials by false filings. However, because there was no statutory or inherent authority to support the issuance of either the March or the September order, the orders operated as an unlawful mechanism to control the petitioner’s future actions after conviction. Accordingly, the petition brought pursuant to CPLR article 78 seeking to vacate and set aside orders of the Supreme Court, New York County (Arlene D. Goldberg, J.), entered on or about March 13, 2006, September 29, 2006, December 5, 2006 and February 15, 2007, should be granted, and it is directed that petitioner be released from indefinite confinement in the special housing unit of Wende Correctional Facility. Footnotes [1] On April 29, 2004, the petitioner was sentenced to 21/2 to 5 years after pleading guilty to forgery in the second degree in violation of Penal Law § 170.10 (3). [2] The petitioner was sentenced to three consecutive terms of 2 to 4 years for the six felony counts, and one year for the misdemeanor count, to run concurrently with the felony sentence.