He noted that Criminal Procedure Law §450.20(8) allowed prosecutors in some cases to appeal suppressed evidence. But Blumenfeld declined to suppress the evidence.
"As such, the People could not appeal the preclusion order under CPL 450.20(8), and no other provision of that statute permits appeal of the subject order…[T]he nonappealability of the preclusion order weighs heavily in favor of invoking the remedy of prohibition," Skelos said.
Blumenfeld argued he was allowed to preclude the evidence pursuant to Judiciary Law §2-b(3), which allows courts "to devise and make new process and forms of proceedings, necessary to carry into effect the powers and jurisdiction possessed by it."
But Skelos said Judiciary Law §2-b(3) "only gives Justice Blumenfeld the power to devise new process to carry out powers that he already possesses."
Blumenfeld also said he was allowed to take his course of action because of Judiciary Law §90(2), which says attorneys are appointed by the courts and can be governed by the rules of those courts. Blumenfeld pointed to a clause stating that "the supreme court shall have power and control over attorneys and counsellors-at-law."
But the power to regulate attorneys' conduct is "principally vested" in the departments of the Appellate Division that can begin disciplinary proceedings, said Skelos.
Furthermore, he said, "the sanction imposed by Justice Blumenfeld was not meant to regulate the conduct of the attorneys appearing before him in connection with People v. Perez, but, rather, to regulate the administration of a program adopted by the District Attorney's office. In this manner, Justice Blumenfeld exceeded his jurisdiction to adjudicate People v. Perez and to regulate the conduct of the attorneys in connection with the adjudication of that case."
Skelos noted in a footnote that "the issue of whether there was a violation of any of Perez's constitutional or statutory rights, or of Miranda, is not before us, and no conclusions are made in this regard."
In September, however, a Second Department panel—including Skelos—did hear oral arguments on three consolidated criminal appeals that, for the first time, squarely raised the constitutional questions of the program (NYLJ, Sept. 5). It has not yet ruled on those cases.
Queens District Attorney Richard Brown said in a statement, "Our position throughout this litigation has been that the proper focus of a suppression hearing must be directed at the constitutionality and voluntariness of a suspect's statements and that a statement may only be suppressed if it is involuntarily made. In spite of his having found that the defendant's statement in Perez was voluntary, Judge Blumenfeld barred the introduction of the statement. In so doing, the Second Department has now held, as we had argued, that he exceeded his authority and that he improperly used the extreme remedy of suppression as a sanction meant to 'regulate the administration of a program' rather than focusing on the facts of the case before him."
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