Opinion
6881/2017
12-21-2017
The PEOPLE of the State of New York, Plaintiff, v. Danny BATSON, Defendant.
For Defendant: Brooklyn Defender Services, Brooklyn, New York (Yung–Mi Lee, of counsel). For The People: Eric Gonzalez, Acting District Attorney, Kings County, Brooklyn, New York (Chelsea Toder, of counsel).
For Defendant: Brooklyn Defender Services, Brooklyn, New York (Yung–Mi Lee, of counsel).
For The People: Eric Gonzalez, Acting District Attorney, Kings County, Brooklyn, New York (Chelsea Toder, of counsel).
Matthew J. D'Emic, J.
The defendant is moving to disqualify the Kings County District Attorney's Office from prosecuting this case, and to appoint a special prosecutor, pursuant to County Law § 701.
The People oppose this application.
The motion is before this court for determination, having been referred to the Administrative Judge for Criminal Matters in the Second Judicial District by the Chief Administrative Judge, the Honorable Lawrence K. Marks. In deciding this motion, the court has considered the papers submitted by both parties, namely, the moving papers and the People's opposition, and has also reviewed the official court file. Upon due consideration of all of the above and the governing law, the court denies the motion.
Background
The defendant, Danny Batson, is indicted on charges of Robbery in the First, Second and Third Degrees, Assault in the Second and Third Degrees, Grand and Petit Larceny, and Criminal Possession of Stolen Property in the Fourth and Fifth Degrees, all relating to events which took place on June 28, 2017.
According to the allegations of the felony complaint, at approximately 7:00 PM on June 28, 2017, the defendant and another individual approached the complainant and the defendant punched him, causing him to fall to the ground. Defendant's accomplice made a motion to his own waistband, indicating that he had a gun, and directed the defendant to pick up the complainant's wallet from the ground. After the defendant took the wallet the two perpetrators fled. The complainant suffered a fractured jaw.
The defendant was arrested on August 26, 2017 and was indicted on September 5, 2017. The accomplice was arrested in early July, 2017, and has been separately indicted for crimes stemming from this incident as well as other, unrelated crimes.
The defendant was arraigned on September 21, 2017.
Counsel for Mr. Batson argues that the Kings County District Attorney's office should be disqualified from prosecuting this case and that a special prosecutor be appointed instead.
The defense maintains, on information and belief, that the complainant's wife is an employee of the Kings County District Attorney's Office, and further, that she was present during the incident of June 28, 2017, and may be called as a witness, thereby raising an appearance of impropriety and demonstrating a conflict of interest. Additionally, the defense contends that this case has not followed the usual path of a felony case, which raises a greater appearance of impropriety. Specifically, counsel asserts that the People have not yet provided the Grand Jury minutes for this case and have refused to provide either these minutes or discovery while this motion is pending, with no apparent justification for these refusals. Also, the defense indicates that there has been no plea offer in this case and intimates that the top count of Robbery in the First Degree is not supported by legally sufficient evidence (and that the report of the incident is in fact exaggerated ), both matters lending further support to a claimed appearance of impropriety.
In her memorandum of law, the defendant's attorney maintains that no robbery occurred and no weapon was even threatened, and that the People allegedly conceded that Mr. McDonald only made a "motion," which led the complainant to believe he had a gun. Rather, she states that this was a "family dispute," and the facts have been misrepresented.
While admitting that the victim's wife is employed at the District Attorney's office (albeit in a different capacity than was alleged by the defendant)—she is a paralegal in the Special Victims Bureau, the People refute any claim of actual prejudice on the part of their office. In her affirmation in opposition to this application, the assistant district attorney assigned to this case, Chelsea Toder, states that she does not know her and has no relationship whatsoever with her. Significantly, the People state that, according to the complainant, his wife was not an eyewitness to this incident, and so she will not be called by the People as a witness. Moreover, they observe that the relationship of the complainant to an employee in the District Attorney's office, where the assigned Assistant District Attorney has no contact or work relationship with that employee, does not require the recusal of the office of the Kings County District Attorney.
The People additionally dispute that this case is being conducted in any unusual manner as would give rise to even an appearance of impropriety, much less evidence any actual impropriety.
The People state that the matter was never on for discovery. Rather, the case was on for motion practice following the defense's announcement that it would be bringing the instant motion, which motion was not made until November 20, 2017. Likewise, any turn-over of the Grand Jury minutes would be premature until the court has reviewed them for legal sufficiency. (It is this court's understanding that the Grand Jury minutes are presently under review by the assigned judge, after having been submitted to the court off-calendar.) Thus, there is no improper refusal to provide these items.
The People also deny any refusal to engage in good faith plea bargaining with the defendant. On the contrary, they assert that a 3–year jail plea offer was made to the defendant in Criminal Court. (This is borne out by the notes in the court file.) Also, the assigned assistant states that the defense attorney has never contacted her regarding plea bargaining or any other matter in this case.
Accordingly, the People conclude that no conflict of interest exists, nor has actual prejudice or a substantial risk thereof been demonstrated and thus there is nothing to warrant the disqualification of Acting District Attorney Gonzalez and his assistants from this case.
As discussed below, the motion is denied.
Discussion
" ‘[A] prosecutor is a quasi-judicial officer, who represents the People of the State, and is presumed to act impartially, solely in the interests of justice’ ... ‘and his primary duty is to see that justice is done and the rights of all—defendants included—are safeguarded....’ [citation omitted]" ( People v. Dowdell , 88 AD2d 239, 243 [1st Dept 1982] ; see also , People v. Lombard , 4 AD2d 666, 671 [1st Dept. 1957] ; People v. Lofton , 81 Misc 2d 572, 575 [Sup. Ct., Kings Co. 1975] ).
Given the nature of the office and the duties imposed upon a district attorney, disqualification of a district attorney is a serious matter and is an exceptional finding.
Discussing this topic, our Court of Appeals has reiterated the governing principles and considerations thusly:
"a ‘[d]istrict [a]ttorney is a constitutional officer chosen by the electors of a county’ [citations omitted]. County Law § 700 vests a district attorney with certain statutory duties including the duty ‘to conduct all prosecutions for crimes and offenses cognizable by the courts of the county for which he or she shall have been elected or appointed’ [citations omitted]. We have observed that a district attorney's broad statutory authority to prosecute all crimes and offenses within his or her jurisdiction is generally nondelegable [citation omitted].
However, there are certain circumstances where a court may substitute the elected district attorney and appoint a special district attorney. As relevant here, County Law § 701 (1) allows a court to appoint a special district attorney in situations where the district attorney is ‘disqualified from acting in a particular case to discharge his or her duties at a term of any court.’ In People v. Leahy , 72 NY2d 510 ... (1988), we stated that the legislature designed this statute "narrowly by its terms and by its purpose to fill emergency gaps in an elected prosecutorial official's responsibility" ( id. at 513...). Acknowledging that a court's authority under County Law § 701 ‘to displace a duly elected [d]istrict [a]ttorney’ raises separation of power concerns, we cautioned that ‘[t]his exceptional superseder authority should not be expansively interpreted’ [citation omitted]" (Matter of Soares v. Herrick , 20 NY3d 139, 144 [2012] ).
Further, mindful that a court may intervene to disqualify an attorney only under limited circumstances, and that this is particularly so in the case of a District Attorney (Matter of Schumer v. Holtzman , 60 NY2d 46, 54–55 [1983] ), the Court of Appeals has repeatedly observed that, "[t]he courts, as a general rule, should remove a public prosecutor only to protect a defendant from actual prejudice arising from a demonstrated conflict of interest or a substantial risk of an abuse of confidence [citations omitted]" (Matter of Schumer at 55; see also Matter of Soares , 20 NY3d at 146 ; People v. Keeton , 74 NY2d 903, 904 [1989] ). Additionally, "the appearance of impropriety, standing alone, might not be grounds for disqualification" (Matter of Schumer , op. cit. ; People v. Keeton , op. cit. ). "The objector should demonstrate actual prejudice or so substantial a risk thereof as could not be ignored" (Schumer , op. cit).
Upon a disqualification motion based on very similar facts this court previously observed that a defendant must "show actual prejudice ... not the mere appearance of same" ( People v. Gonzalez , 30 Misc 3d 1221 (A) [Sup. Ct. Kings Co. 2011] ).
In Gonzalez , this court denied the application for a special prosecutor where the complainant was related (she was the sister) to a deputy bureau chief who worked in a different bureau than that which was prosecuting the case against the moving defendant. There was no work relationship between these two employees and the two assistant district attorneys did not know one another. The situation is identical to the matter at bar and, as was the case in Gonzalez , here too the court finds that no showing of actual prejudice has been made, and the defendant's claims are based on surmise and conjecture. Further, the court finds the "conflict" cases cited by the defense to be inapposite.
Since the complainant's wife will not be a witness for the People, no claim lies that her role as a witness creates an impermissible conflict for the District Attorney (see Keeton at 904).
The court also discounts the defense's claims of unusual or prejudicial handling of this case.
"The District Attorney has broad discretion in determining when and in what manner to prosecute a suspected offender [citations omitted]" ( People v. Di Falco , 44 NY2d 482, 486 [1978] ). Moreover, being the public officer elected by the people to conduct all prosecutions for crimes and offenses in the county for which he/she was elected, the District Attorney "is presumed to act impartially [citation omitted]" (Matter of Holtzman v. Hellenbrand , 130 AD2d 749, 750 [2nd Dept 1987], lv. denied , 70 NY2d 607 ).
While this court, assigned to hear this special application, has not presided over this case and therefore has no direct knowledge as to the proceedings which have taken place, upon review of the court file and each presiding judge's personal notes, it appears that this motion predominated the proceedings. Already at arraignment the defense stated its intention to bring this motion and its anticipated filing was noted upon subsequent appearance dates. There is nothing to indicate that discovery was to be provided in the interim or that the People were derelict in any other respect as would show a particular predisposition or bias against this defendant.
Equally, the fact that the People have not made a Supreme Court plea offer to this defendant does not demonstrate anything akin to a refusal to engage in good faith plea bargaining with him, as was intimated by defense counsel. Indeed, the assigned assistant district attorney states that the defense has never initiated plea discussions. This state of facts does not create an appearance of impropriety or evince a conflict of interest or partiality on the People's part; nor is any actual prejudice to the defendant evident.
In sum, the defendant has not here made the requisite showing of "actual prejudice or so substantial a risk thereof as could not be ignored" (see e.g. , Matter of Schumer , 60 NY2d at 55 ).
Accordingly, the defendant's motion is denied.
This constitutes the decision and order of the court.