145 Misc. 2d 1020 | N.Y. Sup. Ct. | 1989
OPINION OF THE COURT
Should a conviction obtained as a result of and during the commission of a crime by the prosecutor be vacated? Phrased differently, must a jury verdict be set aside because a prosecutor was never admitted to the practice of law in the State of New York?
On December 18, 1987, an indictment was filed charging defendant with robbery in the first and second degrees and various related offenses. On August 31, 1988 pretrial hearing was commenced, and on September 7, 1988 all suppression motions were denied. Jury selection commenced on September 8, 1988 and on September 23, 1988 defendant was convicted of robbery in the second degree and criminal possession of a
It has now been learned that ADA Panofsky has never been admitted to practice law in the State of New York. Defendant moves to vacate his conviction on this ground (CPL 440.10).
The District Attorney’s office concedes that Mr. Panofsky has never been licensed or authorized to practice law in the State of New York. It is alleged that Mr. Panofsky graduated from an accredited law school (presumably Boston University) in 1973. There is no allegation that Mr. Panofsky was admitted in any other State (Dotson v State, 712 P2d 365, 366-367 [Wyo] [differentiating between prosecutors never admitted to practice law and those admitted in other States]; see also, People v Felder, 47 NY2d 287, 294, n 6). Mr. Panofsky has been an Assistant District Attorney for over 13 years. It is conceded that Mr. Panofsky’s actions constitute a violation of Judiciary Law § 484, a class A misdemeanor.
Initially, the court must determine if an Assistant District Attorney or a District Attorney must be licensed to practice law in order to hold that office. If a District Attorney or an Assistant District Attorney need not be a licensed counselor-at-law, then the conviction must be upheld (State v Swan, 60 Kan 461, 56 P 750).
Neither the NY Constitution (art XIII, § 13) nor any statute (County Law §§ 700, 926, 927, 930) requires that a prosecutor be an attorney-at-law. The majority of States where there exists no explicit constitutional or statutory provision requiring that a prosecutor be admitted to practice law hold that admission to the Bar is a prerequisite to the holding of the office of prosecutor (People ex rel. Elliott v Benefiel, 405 Ill 500, 91 NE2d 427; People ex rel. Hughes v May, 3 Mich 598; Danforth v Egan, 23 SD 43, 119 NW 1021, 1024; State ex rel. Indiana State Bar Assn. v Moritz, 244 Ind 156, 191 NE2d 21; In re Opinion of Justices, 240 Mass 611, 135 NE 305; State ex rel. Summerfield v Maxwell, 148 W Va 535, 135 SE2d 741;
The second reason is that the duties of the prosecutor’s office require that the officeholder charge a Grand Jury, conduct trials, appear in court, and conduct other legal actions. These duties can only be performed by a duly licensed counselor-at-law. The courts thus hold that the prosecutor must be an attorney, otherwise he would be unable to perform the duties of his office.
A minority of courts hold that a prosecutor need not be admitted to the practice of law (People v Dorsey, 32 Cal 296; State ex rel. Kinsella v Eberhart, 116 Minn 313, 133 NW 857; State v Swan, 60 Kan 461, 56 P 750, supra). These courts hold, absent explicit language in the Constitution or statute, that a court is not authorized to create requirements for the holding of public offices which are not explicitly in the Constitution or statute. The courts feel that the electors or the appointing officer’s right to elect or appoint an individual to a public office cannot be abrogated by judicial fiat. Further, the courts hold that since a District Attorney does not need a law license, he may practice law in his capacity as prosecutor (State v Swan, supra).
Two early New York nisi prius courts have adopted the reasoning of the majority (Matter of Sposato, 180 Misc 933; Matter of Sposato, 180 Misc 940). This court finds that the reasoning of the majority of courts to be correct.
The court holds that an Assistant District Attorney or the District Attorney must be licensed to practice law in order to qualify for the public office of prosecutor.
The fact that a public officer who is duly elected or appointed does not have the qualifications for the office does not mean that the acts done by such individual during such person’s tenure are null and void. Generally, acts of public officers who are not qualified for their offices are binding on third parties (see, 48 NY Jur, Public Officers and Employees, §§ 296-304; 63A Am Jur 2d, Public Officers and Employees,
In this case, the appointment of Mr. Panofsky as an Assistant District Attorney was regular in all respects, except that he was not qualified to hold that office. Mr. Panofsky must be deemed a de facto Assistant District Attorney. Although a de facto Assistant District Attorney, his office did not authorize him. to practice law without a license (People ex rel. Elliott v Benefiel, 405 111 500, 91 NE2d 427, 429, supra). The act of trying a case was not authorized by the office he held. Thus, he acted ultra vires. Unauthorized acts of public officers are subject to attack by any party who is affected by such illegal conduct. The defendant may attack the illegal practice of law by Mr. Panofsky since he was affected by the unauthorized actions.
The District Attorney, relying on Dunn v Eickhoff (35 NY2d 698) and Matter of Lackas (65 AD2d 800), claims that notwithstanding the prosecutor’s lack of a license, the conviction is valid.
In Dunn v Eickhoff (35 NY2d 698, supra), a civil infant plaintiff was represented by a disbarred attorney. The court held that plaintiff was bound by the acts of the disbarred attorney. The instant matter is distinguishable in two significant ways. First, the attorney in Dunn was a disbarred attorney who at one time had been admitted to practice law. Counsel had the legal training and knowledge of an attorney but due to some conduct was disbarred. As pointed out in People v Chin Min Foo (144 Misc 2d 589), there is a long line of cases which differentiate between acts of a disbarred attorney and acts of a person who has never been admitted to the
Because of the distinctions between civil and criminal cases, the case of Matter of Lackas (65 AD2d 800, supra) is also inapplicable. Further, the viability of that case is questionable. The majority in that case cited the Appellate Division in People v Felder (61 AD2d 309) as supporting their holding, and the concurring opinion felt itself bound by the Appellate Division Felder opinion. After the Lackas decision, the Court of Appeals reversed the Felder court (People v Felder, 47 NY2d 287, supra). Therefore, Matter of Lackas is not applicable to this case.
Several New York nisi prius courts have held that a conviction obtained by a nonattorney prosecutor must be vacated (People v O’Neil, 139 Misc 529, 531; People v James, 150 Mise 390; People v Wood, 151 Misc 66, 71). Those cases held that prosecutions conducted by a complaining officer, a district inspector for the Conservation Commission and the Sheriff of Broome County, must be vacated because the prosecutor was a nonattorney. The specific holdings of those cases appear to have been overruled (People v Van Sickle, 13 NY2d 61; People v DeLeyden, 10 NY2d 293; People v Abajian, 142 Misc 2d 250). However, their discussions regarding a nonlicensed prosecutor do not appear to be overturned.
In People v Black (156 Misc 516, 518-519), the court held that it was not the illegal practice of law when an inspector for the Conservation Department prosecuted a criminal matter. The court read former Penal Law §§ 271 and 270 in conjunction with each other. It held that the statute prohibits the practice of law by a person in the "business” of law or a person making a profit from such practice. From this, the court reasoned that an inspector for the Conservation Department is not in the "business” of practicing law nor does he make a profit from the prosecution of a criminal matter. There was thus no illegal practice of law.
In People v Wyner (207 Misc 673), the court permitted a Village Attorney to prosecute a Vehicle and Traffic Law
In People v Van Sickle (13 NY2d 61, supra), the court upheld the conviction of a defendant who was prosecuted by a nonlawyer complainant. The majority did not address the issue of the lack of a law license on the part of the complaining witness. The concurring opinion adopted much of the
New York cases which have found that a prosecutor has illegally practiced law without a license have vacated the convictions. Courts which have permitted nonlawyer prosecutions have done so on a view that for some reason such prosecution is not the illegal practice of law. (The Attorney-General agrees with those cases which hold that a complainant or an administrative officer who prosecutes matters are not illegally practicing law [1974 Atty Gen (Inf Opns) 166-168]).
The reasons given in those cases which permit nonlawyers to prosecute petty offenses are not applicable to this case. Mr. Panofsky was in fact in the business of practicing law, and made a profit therefrom (cf., People v Black, 156 Misc 516, supra). There exists no historical basis for permitting an Assistant District Attorney to be a nonlawyer (cf., People v Wyner, 207 Misc 673, supra, and its progeny). Mr. Panofsky can in no way be considered a "party” to this litigation (see, People v Van Sickle, 13 NY2d 61, 63-66 [Van Voorhis, J., concurring opn], supra).
The law outside New York is the same as in New York. Those courts that have permitted nonattorneys to prosecute petty offenses have found exceptions to the prohibition against the illegal practice of law by a nonlicensed person (State ex rel. McLeod v Seaborn, 270 SC 696, 244 SE2d 317, supra; State v Kent, 4 ND 577, 62 NW 631, 635; State v Cook, 84 Wash 2d 342, 525 P2d 761, supra; see also, State v Urban, 98 NH 346, 100 A2d 897). Those courts that have found that a prosecutor was practicing law without a license have vacated convictions solely on that basis (People v Munson, 319 111 596, 150 NE 280, 283; State v Russell, 83 Wis 330, 53 NW 441, 441-443; State v Cook, 9 Wash App 227, 512 P2d 744, revd on grounds that practice was legal 84 Wash 2d 342, 525 P2d 761, supra; see also, State v Sossamon, 298 SC 72, 378 SE2d 259). Illustrative of this principle is the law in South Carolina. In 1972 the Supreme Court of South Carolina permitted arresting officers to prosecute minor offenses (State v Messervy, 258 SC 110, 187 SE2d 524). The court did not discuss the prohibition against
Nonetheless, the District' Attorney argues that the court should extend the permission for lay prosecutors to prosecute petty offenses to felonies. However, there are constitutional differences (see, e.g., Matter of Morgenthau v Erlbaum, 59 NY2d 143, cert denied 464 US 993; Scott v Illinois, 440 US 367; Argersinger v Hamlin, 407 US 25), civil rights differences (see, e.g., Election Law § 5-106; Public Officers Law § 30 [1] [e]; Judiciary Law § 510 [4]; § 486), statutory differences (see, e.g., CPL art 10; 30.30; compare, CPL 170.70 with CPL 180.80) and punishment differences between minor offenses and felonies. These distinctions mandate that felony cases be treated with more solemnity, and more rights than petty or minor offenses.
Further, the rule permitting lay prosecution of petty offenses violates the fair trial rule that a prosecutor should not be a witness in a case in which he/she conducts the trial (see,
The court finds that the District Attorney is mandated to prosecute all felonies and an unlicensed individual cannot (People v Vlasto, 78 Misc 2d 419; People v Johnson, 127 Misc 2d 386, 389).
The District Attorney, citing People v Charles F. (60 NY2d 474, cert denied 467 US 1216), argues that since a conviction by a nonlawyer Judge is valid, there is no reason why a conviction obtained by a nonlawyer prosecutor should be vacated. The court disagrees with the prosecutor’s interpretation of Charles F. and the cases relied upon by that court (People v Skrynski, 42 NY2d 218; North v Russell, 427 US 328). These cases hold that as long as there exists a mechanism by which a defendant can request a law-trained Judge, defendant’s constitutional rights are not violated. People v Charles F. holds that to the degree that there is a right to a law-trained Judge, the right is not absolute. It is sufficient if the statute provides for application to transfer the matter to a law-trained Judge even if that application is denied.
In addition, Charles F. (supra) is not a felony case. For the reasons stated earlier, there are constitutional differences between felony and misdemeanor cases. Indeed, by a confluence of various sections of the New York State Constitution defendants are entitled to lawyer Judges in felony cases. Article I, § 6 requires that all felonies be prosecuted by indictment (the exceptions are irrelevant to this discussion). Article VI, § 7 requires that all indictments in the City of New York be tried in the Supreme Court (outside of New York it may be tried in the County Court). Thus a person charged with a felony must be tried in the Supreme Court in New York City (or outside New York City in the County Court). Article VI, § 20 mandates that a Justice of the Supreme Court (or a County Court Judge) must be "admitted to practice law”. Thus a felony charge must be tried in the Supreme Court by a Justice who is admitted to the practice of law. Charles F. does not apply to felonies.
The court finds for the reasons stated above that the Assistant District Attorney, who prosecutes felony cases, must have a license to practice law. This rule was violated by Mr. Panofsky, who prosecuted this felony case without ever having obtained a license to practice law in this State.
The issue now facing the court is whether a violation of the above rule requires per se reversal or reversal only if prejudice is shown.
The cases discussed earlier in which the courts found a prosecutor violated the prohibition against the practice of law without a license vacated the conviction without an examination of prejudice. Those courts, however, do not set forth their reasoning for such a per se rule.
In determining whether to apply a per se rule or one which requires a finding of prejudice this court will consider the following factors or principles:
a) A prosecutor has "more control over individuals’ liberty and reputation * * * than * * * perhaps any other public official”. (People v Zimmer, 51 NY2d 390, 394).
b) A prosecutor is a quasi-judicial officer, whose duties include instructing a Grand Jury as to the law, deciding who and when to prosecute, deciding what plea should be tendered to defendants, and many quasi-judicial functions.
c) A defendant does not have a right to select which prosecutor should prosecute the case (People v Kramer, 33 Misc 209, 220; People v Citadel Mgt. Co., 78 Misc 2d 626, 627, revd on other grounds 80 Misc 2d 668; People v Lanni, 10 Misc 2d 42, 44).
d) A fraud was committed on the court when Mr. Panofsky tried this matter even though he had no license to practice law. Implicit in Mr. Panofsky’s appearance before this court to select a jury and to conduct direct and cross-examinations was that he was a lawyer. The court relied on such representation in permitting him to practice law before it, accepting his affirmation in opposition to a motion, and his submission of a second felony offender statement (see, e.g., Matter of Lockett v Juviler, 65 NY2d 182).
e) In People v Poole (48 NY2d 144, 149), the court stated
f) Criminal law does not only concern itself with the accuracy of the results, but also with the integrity of the process by which a person has been convicted. A conviction in which the integrity of the prosecutor is questionable should not stand.
g) Generally when something is the fruit of illegal governmental action it must be suppressed (Wong Sun v United States, 371 US 471). A felony conviction obtained by a nonlawyer prosecutor is the fruit of the illegal practice of law by that prosecutor.
h) Where a conviction is obtained by flagrant misconduct on the part of a prosecutor or other law enforcement agent, the conviction must be vacated as violative of due process (see, People v Isaacson, 44 NY2d 511; People v Rao, 73 AD2d 88). In this case a flagrant fraud was committed on the courts, a violation of the prohibition of the unlicensed practice of law was committed.
i) As the late Justice Brandéis stated in Olmstead v United States (277 US 438, 485), "Decency, security and liberty alike demand that government officials shall be subjected to the
The court feels that the regularity and integrity of the judicial process by which this defendant was convicted is questionable. Where the court permits a conviction to remain in force where fraud and illegality are used to obtain it, the court could only be deemed to be a partner in such fraud and illegality. The court therefore adopts the per se rule that a felony conviction obtained by a nonlawyer prosecutor must be vacated without regard to prejudice.
The motion to set aside the verdict is granted.
. Cases involving prosecuting attorneys other than District Attorneys are irrelevant to this discussion since the prosecutors were licensed to practice law (see, People v Birnberg, 112 Misc 2d 870; People v Kramer, 33 Misc 209; People v Montgomery, 7 Misc 2d 294; People v Apostle, 30 Misc 2d 55, 62; People v Schildhaus, 4 NY2d 883; People v Czajka, 11 NY2d 253; People v Scharer, 185 Misc 616; People v Leombruno, 10 NY2d 900; People v Rodgers, 205 Misc 1106, 1107; People ex rel. Pringle v Conuiay, 121 Misc 620, 622; People ex rel. Howes v Grady, 66 Hun 465, affd 144 NY 685; People v Vial, 132 Misc 2d 5).
. The court realizes that the specific holding of People v Johnson (127 Misc 2d 386) was overruled by Matter of Darvin M. v Jacobs (69 NY2d 957). However, the holding that the District Attorney must prosecute all felonies was not overruled.
. Had the court required a showing of prejudice, the burden of showing lack of prejudice would have been placed on the prosecutor. This is so because defendant has shown illegality, and once illegality is shown, the burden is on the People to show attenuation, or independent basis. Further, prejudice is not limited to the trial, but to prosecutor’s decisions and use of discretion. This information is in the sole possession of the People (see, People v Rosa, 65 NY2d 380, 386-387).
. The court takes no position regarding defendants, who pleaded guilty. Many of the considerations herein would not be present where a plea is taken. Further, a plea waives nonjurisdictional issues.