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October 26, 2013

New York Appellate Court To Decide Battle Over New York Prosectuorial Discretion Versus Judicial Power

By Michael H. Joseph

Our New York criminal defense lawyers continue to keep up to date on emerging areas of criminal defense law in the state of New York. An update New York power struggle has emerged over a case involved arrests from an occupy wall street movement where protestors set up a protest in Albany across from the State Capitol Building. The District attorney opted to decline to prosecute the cases and one of the criminal court judges decided that the prosecutor has broad discretion to decide which cases to prosecute dismissed the cases. However a handful of cases landed on the docket of a different judge which decided that he would only dismiss the cases if the protestors performed community service which would have benefited military veterans. The protestors refused and the Court refused to dismiss the charges. This requirement obviously would have been offensive to the protestors,many of whom, who were protesting the military industrial complex in the first place. The prosecutor then decided to decline to prosecute and the criminal court judge refused to allow him to do so.

In response to the Court’s unreasonable tactics, the prosecutor essentially opted to throw the case. Since the Court ordered the prosecutor to proceed to trial, the prosecutor did so, but opted not to call any witnesses, which mandated a dismissal because without witnesses being called there can be no prima facie case that a crime or offense was committed.

The New York Supreme Court held that the Judge was correct, that a case could not be withdrawn once initiated, unless the Criminal Court Judge approved of the dismissal. The Supreme Court also held that the Criminal Court did not have the power to hold the prosecutor in contempt because it is solely in the prosecutors discretion to determine what witnesses to call and what evidence to present. The Criminal Court Judge contends that criminal court judges need the contempt power to ensure that justice is done and that the public is protected, from accused criminals as well as the abuse of the prosecutorial power and to ensure that the rights of the accused are protected by the prompt, lawful and conclusive administration of justice

The Third Appellate Department is set to hear the controversy. For over a decade our New York attorneys have continued to fight on behalf of the underdog in the New York Courts.

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