Opinion
2004KN066449.
Decided June 27, 2005.
O'Connell, Joyce B. David, Esq., for Defendant.
Serrano, Stuart Birbach, Esq., for Defendant.
Office of the Kings County District Attorney by Jannette Morales, Esq., Asst. Dist Atty, for the People.
Defendant Daniel O'Connell is charged with Menacing in the Second Degree (PL Sec. 120.14(1)) and Criminal Possession of a Weapon in the Fourth Degree (PL Sec. 265.01(2)), both Class A Misdemeanors, as well as Harassment in the Second Degree (PL Sec. 240.26(1), a violation. Defendant Elvis Serrano is charged with Assault in the Third Degree (PL Sec. 120.00(1), Menacing in the Second Degree (PL Sec. 120.14(1)) and Criminal Possession of a Weapon in the Fourth Degree (PL Sec. 265.01(2)), all Class A Misdemeanors, as well as Harassment in the Second Degree (PL Sec. 240.26(1), a violation. These matters are cross-complaints.
Defendant O'Connell submitted a letter dated April 9, 2005 to the Hon. Neil J. Firetog, Administrative Judge for the County of Kings in which that Defendant sought the disqualification of the Kings County District Attorney's Office in the above-stated matters, and the appointment of a Special Prosecutor pursuant to County Law 701. By letter dated April 19, 2005, Judge Firetog indicated that "the determination of whether or not a special prosecutor is required should be made by the judge before whom the matter is pending."
On April 21, 2005, this Court exercised its discretion pursuant to CPLR Sec. 2001 and 2101(f), and accepted Defendant O'Connell's letter dated April 9, 2005 as a motion for the appointment of a Special Prosecutor pursuant to County Law 701.
The Court has also reviewed the Affirmation in Opposition of Defendant Serrano dated May 9, 2005, the People's Affirmation in Opposition dated May 24, 2005, and Defendant O'Connell's letter dated May 30, 2005 in response to the aforementioned Affirmations in Opposition.
On June 15, 2005, this Court delivered its opinion in this matter from the bench. The parties were informed that a written decision would follow. This shall constitute the opinion, decision, and order of the Court.
For the reasons that follow, Defendant O'Connell's motion seeking disqualification of the Kings County District Attorney and the Appointment of a Special Prosecutor is denied, however, the Kings County District Attorney is directed to appoint two separate prosecutors to pursue these cross complaints. Neither assistant is to be the one who initially interviewed both defendants due to that Assistant's inherent potential conflict of interest in representing one of the defendants in this matter.
THE FACTS
Defendants O'Connell and Serrano were both arrested after a dispute that allegedly arose between them on November 9, 2004 here in Kings County. Both defendants were arraigned on or about that same day, and each was released on their own recognizance.
Prior to their arraignment, Assistant District Attorney Jeannette Morales of the Kings Count District Attorney's Office interviewed both defendants, apparently with their attorney's present. Ms Morales indicates in her opposition papers that she is currently assigned the prosecution of Defendant Serrano, and has reassigned the case of Defendant O'Connell to another assistant in a separate Bureau.
JURISDICTION
In the past, the majority of decisions which have addressed the issue of whether or not a local criminal court has the jurisdiction to disqualify a District Attorney and appoint a Special Prosecutor have bifurcated the question. These courts have held that nothing prevented the local criminal court from disqualifying a prosecutor, however, under County Law 701, only the superior court has the power to appoint the special prosecutor. See, eg., People v. Nelson, 167 Misc2d 665 (Crim. Ct., Kings Cty, 1995).
In People v. Marie Infante, NYLJ, 6/18/91, 23 (col 3) (Crim.Ct., Bx Cty 1991), the court found that the local criminal court did not have the authority to either disqualify the District Attorney, nor to appoint a special prosecutor, however, assuming that the application would be renewed in the superior court, the judge went on to address the issue on its merits, and found that the appointment of two independent assistants to prosecute each matter was an acceptable solution.
Recently, in People v. Balcacer, 2005 WL 515615 (Crim.Ct., NY Cty 2005), the court indicated in no uncertain terms that County Law 701 does not grant a local Criminal Court any authority to disqualify a District Attorney. The court there frowned upon the bifurcation process, noting that such a procedure "runs afoul of sound statutory construction, lacks appellate support, and raises Constitutional separation of powers issues." In fact, the Balcacer court noted that the bifurcation process "could lead to the objectionable result of a Criminal Court Judge disqualifying a District Attorney from a case and a Supreme Court Justice then declining to appoint a Special Prosecutor."
This court agrees with the reasoning of the Balcacer court. A local criminal court does not have the authority to either disqualify a District Attorney, or appoint a special prosecutor.
In this matter, however, this Court may rely upon the grant of authority conveyed to it by the Superior court. The letter of Administrative Judge Firetog dated April 19, 2005, indicates that "the determination of whether or not a special prosecutor is required should be made by the judge before whom the matter is pending." Thus, Judge Firetog, who is a Supreme Court Justice, has conveyed to this Court limited jurisdiction to decide this matter.
Therefore, if this court were to determine that a special prosecutor is necessary, the issue would return to the superior court, who would then make the appointment pursuant to County Law 701.
CONFLICT OF INTEREST ANALYSIS
The central issue here is whether or not a District Attorney's Office has a conflict of interest in prosecuting both sides of a cross-complaint arising out of the same incident.
By prosecuting both defendants in a cross-complaint, the People are in the position of accusing the same person of a crime that it seeks to protect as the victim of the same crime. As was discussed in People v. Cassidy, 118 Misc2d 110, 111 (Crim.Ct., Kings Cty 1983) "the common law concept of assault cannot condone both parties' freedom from fault. There must be both an aggressor and an aggrieved . . . (t)hus, it is the very nature of cross claims of assault, which from its inception forms a conflict for the prosecutor." (But, See, People v. Schiraldi, 93 Misc2d 343 (Crim.Ct., Queens Cty, 1977), where the Court found no conflict of interest where the same district attorney's office prosecutes two cross complaints for assault arising out of a single incident.)
If we assume, as in Cassidy, that there is conflict, then it is inherent, and the mere appearance of impropriety is enough to cause the disqualification of a district attorney. See, People v. Nuzzi, 128 Misc2d 502, 508 (S. Ct., NY Cty, 1985). If, as in Schiraldi, the conflict is not inherent, than the defendant must establish actual prejudice or the substantial risk thereof for the district attorney to be relieved of his duties. See, Nelson, 167 Misc2d at 673.
The Nuzzi case addresses this question in great detail. There the court found that "actual prejudice" rule, which had been followed by prior courts, was no longer the law, relying in part upon Cassidy. 128 Misc2d at 508. However, the Nelson case, which was decided subsequent to Nuzzi, states quite clearly that "the Court of Appeals has made plain that a conflict of interest will not be lightly declared, and that 'the appearance of impropriety, standing alone, might not be grounds for disqualification. The objector should demonstrate actual prejudice or so substantial a risk thereof as could not be ignored." 167 Misc2d at 673 citing Matter of Schumer v. Holzman, 60 NY2d 46, 55, 467 NYS2d 182 (1983).
This court believes the standard of review applicable here is as stated in Schiraldi, Schumer and Nelson, and the movant must establish actual prejudice, or a substantial risk thereof. However, the standards discussed in Nuzzi cannot not be disregarded. Nuzzi concerned a defendant who was related to an Assistant in the New York County District Attorney's Office "within the fourth degree of consanguinity." There the court relied upon People v. Shinkle, 51 NY2d 417, 434 NYS2d 918 (1980), in which the executive director of the Legal Aid Society of Sullivan County became the Chief Assistant District Attorney for the same county.
Clearly, then, in cases where there is a blood relation between an assistant district attorney, or where an attorney who represented defendants switches jobs, and begins to prosecute the same defendants, the argument regarding the appearance of impropriety is much more powerful. This, presumably, is why the Schumer case uses the language "the appearance of impropriety, standing alone, might not be grounds for disqualification." (Emphasis added.) There are recognizable instances where the appearance of impropriety is so strong that the failure to appoint a special prosecutor would "weaken the appearance of fairness." Nuzzi, 128 Misc2d at 508.
This, however, is not one of those cases. There is no assertion by the movant that any party is related by blood or marriage to another, nor is there an allegation that one attorney has moved from being a prosecutor to a defender, or vice versa. Thus, the Shinkle, Cassidy, and Nuzzi line of cases is not applicable here. FINDINGS AND CONCLUSION OF LAW
The Court has reviewed People v. Wyatt, 140 Misc 2d 60 (Crim.Ct., Bronx Cty 1988), which is cited by Defendant O'Connell in his moving papers, and having done so, specifically declines to follow that case. Not only did that court fail to conduct any analysis of the jurisdictional impediment of County Law Sec. 701, but the court's finding that a special prosecutor was necessary is based on the fact that the People had dismissed one case and continued the prosecution of the other in a cross-complaint situation. This ruling entirely ignores the People's "full discretion to decide whom to prosecute." Nelson, 167 Misc 2d at 670 citing People v. Claudio, 130 AD2d 759, 515 NYS2d 845 (2nd Dept. 1987).
Applying the Schiraldi, Schumer, and Nelson reasoning to the instant matter, Defendant O'Connell has not demonstrated the existence of any actual prejudice or a substantial risk thereof arising from his prosecution by the Kings County District Attorney's Office. The mere fact that Defendant Serrano was offered a favorable disposition does not demonstrate actual prejudice, especially in light of the offer made to Defendant O'Connell, which was even more favorable. Therefore, a special prosecutor is not necessary in this matter, and Defendant O'Connell's application to have one appointed is denied.
The issue of ADA Morales remaining as the prosecutor in one of these two actions is more troublesome, but still does not lead to the disqualification of her entire office. As was stated in the Schiraldi case, "We need not question the proposition: 'an attorney cannot be permitted to assist in the prosecution of a criminal case if by reason of his professional relations with the accused he has acquired a knowledge of the facts upon which the prosecution is predicated or which are closely interwoven therewith.'" 93 Misc 2d at 350, citing People v. Curry, 1 Ill. App.3d 87, 272 NE2d 669, 672 (1971)
Thus, because Ms Morales interviewed both Defendants shortly after their arrest, there exists the possibility that at the trial of either defendant she may be called as a witness for either side. Her conflict of interest under these circumstances is quite clear.
Therefore, Ms Morales is directed to turn her file over to a different assistant in another zone and to have no contact with that prosecutor or the members of that prosecutors staff. The cases will be handled separately, and there will be no communication or sharing of information between Ms. Morales and the assistant district attorneys handling these two matters.
The Wyatt court noted that it was insufficient for the Bronx District Attorney's Office to have "two separately appointed ADA's from two different trial bureaus, without permission to share information between each other." That court felt that "the active participation of two ADA's on this case . . . each wanting to win his prosecution, with all access to rumors and conversation and the potentiality of observing documents mistakenly laid about still bespeaks of an unacceptable conflict of interest."140 Misc 2d at 72. This court wholeheartedly rejects the Wyatt court's dark view of the workings of that District Attorney's Office, and until evidence is revealed to the contrary, this court is confident that the Kings County District Attorney "is presumed to act impartially" and ethically. Nelson, 167 Misc 2d at 670.
This shall constitute the opinion, decision, and order of the Court.