HIV AIDS Resource Guide/HIV-AIDS Resource Guide.iso/STAT/CASES/CONNELL.ASC

Text File | 1993-01-14 | 9KB | 168 lines

/*  This case is reported in 583 N.Y.S. 2d 707 (A.D. 4 Dept.
1992). In this case a New York County court ordered a rape
suspect to be tested for HIV, and that the test results be
forwarded to the alleged victim. This decision finds that the
County Court lacked the authority to do so, and is premised on
the lack of the County Court to order such testing. The opinion
leaves open the possibility of seeking relief in higher courts.
*/

Matter of John DOE, Petitioner,

v.

Honorable John J. CONNELL, Monroe County Court Judge, Respondent.

Supreme Court, Appellate Division, Fourth Department.

April 24, 1992.



DAVIS, Justice.

Petitioner is a defendant in a criminal action pending in the
Monroe County Court who has been charged with rape and sodomy.
During the course of the criminal action, the People moved for an
order directing petitioner to provide a blood sample to be tested
for his human immunodeficiency virus (HIV) status and further
directing that the results of that test be disclosed to the
complainant and her husband. The affidavit of the First Assistant
District Attorney in support of the motion states that the
requested relief was not sought pursuant to the discovery
provisions of CPL 240.40(2)(b)(v) and he expressly "agree[d] not
to use any of the results for any aspect of the prosecution".
Rather, the relief was requested for the purpose of assisting the
complainant who desired "only to use the test results in an
effort to relieve and recover from her emotional trauma".  The
statutory provision upon which the People predicated their claim
of entitlement to the requested relief was Public Health Law
2785(2).  Petitioner opposed the People's motion.  Respondent, a
Monroe County Court judge, orally granted the relief sought.
Prior to the issuance of respondent's  order,  however,
petitioner commenced this original CPLR article 78 proceeding
seeking a judgment in the nature of prohibition to restrain and
enjoin respondent from 1) compelling petitioner to submit to a
blood test to determine his HIV status and 2) further directing
that the results of that test be disclosed to the complainant and
her husband.  Petitioner contends that a writ of prohibition
should issue because 1) County Court lacks jurisdiction or
authority to compel petitioner to submit to such blood test or to
compel disclosure of the results of that test, 2) the District
Attorney lacks authority to move for blood testing pursuant to
the Public Health Law, 3) Public Health Law 2785(2) does not
authorize an order compelling petitioner to submit to a blood
test to determine his HIV status, and 4) an order compelling him
to submit to a blood test to determine his HIV status would
violate his Federal and State constitutional rights. The People
argue that the petition should be dismissed because the court
ordered testing and disclosure were proper under the
circumstances of this case.

[1, 2]  "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 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" (Matter of Holtzman v. Goldman, 71 N.Y.2d 564, 568, 528
N.Y.S.2d 21, 523 N.E.2d 297). The extraordinary remedy of
prohibition is not available to correct or prevent trial errors
of substantive or procedural law, no matter how grievous (see, La
Rocca v. Lane, 37 N.Y.2d 575, 579, 376 N.Y.S.2d 93, 338  N.E.2d
606, cert. denied, 424 U.S. 968, 96 S.Ct. 1464, 47 L.Ed.2d 734).
Rather, "[p]rohibition is available only where there is a clear
legal right to such relief, and then only where a court acts or
threatens to act either without jurisdiction or in excess of its
authorized powers" (Matter of James N v.  D'Amico,  139 A.D.2d
302, 303, 530 N.Y.S.2d 916, lv. denied, 73 N.Y.2d 703, 537
N.Y.S.2d 491, 534 N.E.2d 329).  If a court acts without
jurisdiction or acts or threatens to act in excess of its powers,
prohibition is not mandatory but is discretionary. Whether that
discretion should be exercised involves a consideration of a
number of factors, including the gravity of the harm caused and
the availability of other methods of redress (see, Matter of B.T.
Prods. v. Barr, 54 A.D.2d 315, 317, 388 N.Y.S.2d 483, affd, 44
N.Y.2d 226, 405 N.Y.S.2d 9, 376 N.E.2d 171).

[3, 4]  Petitioner contends that prohibition lies in the
circumstances of this case because respondent has acted or is
threatening to act without jurisdiction or in excess of his
authorized powers.  We agree. County Court is a court of limited
jurisdiction and it may exercise jurisdiction over only those
classes of actions and proceedings specifically granted to it by
the State Constitution or by statute (see, N.Y. Const. art. VI,
11; Judiciary Law  190, 190b; Newhouse Props. v. Mc Gee, 139
A.D.2d 923, 528 N.Y.S.2d 240; Matter of Hill v. Marks, 124 A.D.2d
445, 507 N.Y.S.2d 544). While County Court unquestionably has
jurisdiction over the pending criminal action (see, CPL 10.10,
10.20), here, the People's motion was not made to develop
evidence for use in the prosecution of the criminal action.
Rather, the sole statutory basis upon which the People's motion
was predicated was Public Health Law 2785(2). That provision,
contrary to the People's argument, did not confer jurisdiction on
County Court.  Indeed, the People cite no statutory authority
that grants jurisdiction to County Court either to compel a
defendant in a criminal action to submit to a blood test for the
purpose of determining his HIV status or to direct disclosure of
the results of that test where, as here, the test results sought
were not for use in any aspect of the criminal action (cf, Matter
of Anonymous,  156  A.D.2d  1028,  549 N.Y.S.2d 308, affd., 76
N.Y.2d 766, 559 N.Y.S.2d 976, 559 N.E.2d 670; People v. Thomas,
139 Misc.2d 1072, 529 N.Y.S.2d 429).

Furthermore,  prohibition  is  available where the court acts or
threatens to act in excess of its authorized powers.  Public
Health Law  2785(2) does not authorize court ordered testing to
determine the HIV status of a person. That section authorizes
court ordered disclosure of confidential HIV-related information
only in specific circumstances not present  here.  Public Health
Law  2781 delineates the conditions for obtaining an order for
the performance of an HIV-related test. Pursuant to that section,
HIV-related testing is prohibited without the written informed
consent of the person to be tested, except as authorized by CPLR
3121 or otherwise specifically permitted by statute (see, Matter
of Anonymous, supra, 156 A.D.2d at 1029, 549 N.Y.S.2d 308).
Because of the absence of specific statutory authority that
permits HIV testing under the circumstances of this case, the
authority of County Court in this regard is circumscribed by
Public Health Law  2781(1).

Application of the established principles regarding prohibition
compels the conclusion that petitioner has shown that "the issue
presented is the type for which the remedy [of prohibition] may
be granted" (Matter of Holtzman v. Goldman, supra, 71 N.Y.2d at
568, 528 N.Y.S.2d 21, 523 N.E.2d 297).  Petitioner has
demonstrated a "clear legal right" (Matter of James A v. D'Amico,
supra, 139 A.D.2d at 303, 530 N.Y.S.2d 916) to the remedy and
respondent has threatened to act without jurisdiction and in
excess of his authorized powers by ordering petitioner to submit
to a blood test to determine his HIV status and by directing that
those test results be disclosed to the complainant and her
husband.

Additionally, we conclude that, in the exercise of sound judicial
discretion, "prohibition is warranted by the merits of the claim"
(Matter of Holtzman v. Goldman, supra, 71 N.Y.2d at 568, 528
N.Y.S.2d 21, 523 N.E.2d 297). The issuance of an order by
respondent compelling petitioner to submit to a blood test to
determine his HIV status and directing that those test results be
disclosed to the complainant and her husband cannot be corrected
on appeal or by any other proceedings at law or in equity.  No
appeal would lie from such an order since it would be neither an
order issued as part of the criminal proceeding nor an order
issued in a separate civil proceeding (see, La Rocca v. Lane,
supra, 37 N.Y.2d at 579, 376 N.Y.S.2d 93, 338 N.E.2d 606).
Therefore, prohibition is the only remedy available to redress
the lack of jurisdiction and excess of power.  Accordingly,
judgment should be granted prohibiting respondent from compelling
petitioner to submit to a blood test for the purpose of
determining his HIV status and from directing that the results of
that test be disclosed to the complainant and her husband.  In
view of our holding, we do not address the remaining arguments
raised by petitioner.

Petition unanimously granted without costs and judgment granted.