126 Misc. 2d 673 | N.Y. City Crim. Ct. | 1984
OPINION OF THE COURT
Defendant, who is accused of reckless driving (Vehicle and Traffic Law § 1190); and driving while intoxicated (Vehicle and Traffic Law § 1192 [2]), is the first cousin of an Assistant District Attorney of New York County. He bears the same surname as his cousin.
Upon arraignment, because the Trial Bureau to which defendant’s cousin is assigned was on “intake” that day, the case was allocated to the Criminal Court All-Purpose Part in which said Bureau functions. When this fortuitous coincidence was discovered, the case was reassigned to a different Trial Bureau within the District Attorney’s office and transferred to a different All-Purpose Part not served by that Bureau.
Defendant moves for an order disqualifying the Office of the District Attorney of New York County from prosecuting this
Defendant argues that the District Attorney’s office will go out of its way to dispel any inference of favoritism, thereby eliminating plea bargaining
Preliminarily it is in order to point out that “The District Attorney is a public officer. His duties are quasi-judicial in nature. His obligation is to protect, not only the public interest, but also the rights of the accused. In the performance of his duties, he must not only be disinterested and impartial, but must also appear to be so (People v Lombard, 4 AD2d 666, 671; People v Fielding, 158 NY 542, 547). His primary duty is to see that justice is done. Because he is presumed to act impartially (People v Fielding, supra, p 547) he has wide latitude to determine whom, whether and how to prosecute (Matter of Johnson v Boldmen, 24 Misc 2d 592; Matter of Hassan v Magistrate’s Ct. of the City of N. Y., 20 Misc 2d 509, app dsmd 10 AD2d 908, cert den 364 US 844; Matter of Coleman v Lee, 1 Misc 2d 685).” (People v Lofton, 81 Misc 2d 572, 575-576.)
The power of a criminal court to supersede a prosecutor is governed by County Law § 701 which reads in pertinent part: “Whenever the district attorney of any county and his assistant, if he has one, shall not be in attendance at a term of any court of record, which he is by law required to attend, or is disqualified from acting in a particular case to discharge his duties at a term of any court, a superior criminal court in the county wherein the action is triable may, by order appoint some attorney at law having an office in or residing in the county * * * to act as special
It is significant to note that the restrictive language referring to a “superior criminal court” was added in 1974 (L 1974, ch 456) and that these words replaced a more general reference to “the court”. This would appear to foreclose consideration of the application before use without prejudice to renewal in a superior criminal court.
A reading of the statute, however, with particular reference to the body of enactments into which it has been codified, evokes fascinating doubts as to its primary thrust. A credible argument can be made, in spite of the specific language limiting this prerogative to a superior criminal court, for the proposition that this is primarily a funding statute owing to its position in the County Law rather than in the Criminal Procedure Law and that the language pertaining to funding, viz., that an order of a superior criminal court thereunder becomes, by operation of law, a charge upon the county — is in fact the important provision to the exclusion of the introductory language. This construction would appear to be reasonable by implication if in fact the traditional practice of recognizing prosecutors other than the Attorney-General or County District Attorneys in local criminal courts (the New York City Criminal Court included) is still sanctioned notwithstanding the seemingly restrictive 1974 amendment limiting this power to superior criminal courts.
It has been held that where the District Attorney of any county is aware of a prosecution or a term of court in which prosecutions are ordinarily held and chooses not to appear therein, he is held to have consented to prosecution by others. (People v Van Sickle, 13 NY2d 61; People v Czajka, 11 NY2d 253; People v DeLeyden, 10 NY2d 293; People v Leombruno, 10 NY2d 900; People v Schildhaus, 4 NY2d 883.) This line of cases specifically includes prosecutions in local criminal courts in addition to those pending in a superior criminal court. It would appear that these cases are at variance with the seemingly restrictive terms of section 701 whose introductory phrase reads “Whenever the district attorney * * * shall not be in attendance at a term of any court of record”. Thus, the line of cases sanctioning prosecution by persons other than the District Attorney in a local criminal court where he chooses not to appear
While it would be possible to grant the application in question based upon this liberal construction of the statute, the basic fact emerges that we deal here not with a situation where a District Attorney consents by implication to prosecution by others as contemplated by the Van Sickle (supra) line of cases, but one where he is in fact prosecuting and vigorously resists any application to supplant him. In this area, it would appear that a literal reading of the statute, whether its original import be financial or otherwise, would be appropriate. We accordingly so hold in deference to the specific statutory limitation of jurisdiction to appoint a special prosecutor to a superior criminal court.
Having so held, certain observations are appropriate.
The Office of the District Attorney of New York County has an unmatched national reputation for integrity and credibility. This reputation did not materialize out of thin air. It has been painstakingly built, case by case over literally hundreds of thousands of prosecutions. We respectfully believe it to be the court’s function in every case where it is appropriate — and this case falls into that category — to protect this reputation with the same zeal which the prosecutor would show in protecting the court institutionally. It is therefore in order to point out that had the court not held itself without jurisdiction, it would nevertheless have denied this motion as having no basis under the Canons of Ethics or under any reported stare decisis.
With respect to the exercise of this discretion, the court commends attention to Matter of Fox v Shapiro (84 Misc 2d 223) and People v Cruz (55 AD2d 921). In these related cases, the former Chief Attorney of the Legal Aid Society of Orange County had been appointed by the Governor as District Attorney. The court held there to be no ipso facto conflict attributable to this fact alone. In the latter case, Shapiro had been Chief Attorney of the Society at defendant’s arraignment. The Appellate Division, Second Department, pointed out that he had taken steps to isolate himself from the prosecution of all cases pending in a similar posture and framed the issue solely on the basis of any demonstrable prejudice which may have resulted to defendant. The court remitted the proceeding for a hearing as to what knowledge Mr. Shapiro might have had about this specific case and whether he transmitted this information to anyone else.
The District Attorney is a public officer who is presumed to act in accordance with his mandate and ethical standards. (People v Lofton, 81 Misc 2d 572, supra; People v Fielding, supra, p 547.) “Under long-standing principles of law, this court must presume, until the contrary is shown, that officers vested with discretionary power exercise their power consistent with their
Understandably, this is one of those uncomfortable situations which do arise in life where all concerned would have preferred that the underlying incident, whatever did in fact transpire, had not placed them in this position. It is obvious that every possible step has been taken internally to avoid even a whisper of impropriety. The District Attorney’s office appears to have more than fully complied with all safeguards suggested by the Shapiro (supra) line of cases. These Appellate Division holdings are not only good law but they in fact emanate from the single most appropriate court having jurisdictional responsibility over counsel’s compliance with ethical guidelines. We are at a loss to think of a more appropriate ethical standard for any attorney to follow.
Motion denied.
This argument falls in the face of a policy of the New York County District Attorney’s office not to plea bargain in cases involving driving while intoxicated.