Lead Opinion
OPINION OF THE COURT
Defendant’s conviction must be vacated where the executive director of the Legal Aid Society who represented him in the beginning stages of the criminal action later joined the District Attorney’s office and remained there during the course of proseсution of the action, notwithstanding that means were designed and scrupulously pursued to insulate him from defendant’s case.
On March 8, 1977, the day after the events out of which the charges in this case arose, Sol Lesser, Esq., of the Legal Aid Society of Sullivan County, Inc., was assigned tо represent defendant. Edward Leopold, Esq., then executive director of the Legal Aid Society, became actively involved as advisor to Lesser during the early stages of the criminal proceeding. In this capacity Leopold interviewed defendant extensively, was intimately familiar with the contents of his file, and assisted in the formulation of defense strategy. On December 23, 1977 Leopold resigned as executive director of the Legal Aid Society, and on January 12, 1978 he
Conscious of the risks of conflict of interest, Leopold had “conflict” stickers placed on all pending cases in which the defendants were or had been represented by the Legal Aid Sociеty during his tenure of office, the members of the staff of the District Attorney’s office were ordered, to refrain from discussing any of such cases with Leopold, and he was denied access to the files in such cases.
In late January, 1978, a proceeding under CPLR article 78 wаs instituted on defendant’s behalf to restrain the District Attorney’s office from prosecuting defendant because of conflict of interest and prejudice in consequence of the Leopold appointment. On February 22 the application was denied withоut prejudice to the right to apply to the Trial Judge for similar relief when the case was reached for trial. On reargument of the application in April the court adhered to its original decision. Defendant thereafter made a similar application to the trial court and that application, too, was denied. At the time of defendant’s trial from June 26 to July 7, 1978 Leopold was still Chief Assistant District Attorney of Sullivan County.
In affirming defendant’s conviction of rape in the first degree, petit larceny, unauthorized use of a motor vеhicle and assault in the third degree, the Appellate Division, with two Justices dissenting, rejected defendant’s contention that his convictions should be reversed because of the dual role played by Leopold. This was error, and the convictions must be vacatеd.
The fact that the attorney who had initially represented defendant and participated actively in the preparation of his defense was chief assistant in the office of the prosecutor in the months preceding and during defendant’s trial inescapably gave both defendant and the public the unmistakable appearance of impropriety and created the continuing opportunity for abuse of confidences entrusted to the attorney during the months of his active representation of defеndant. It is no answer that defendant offers no evidentiary proof of actual prejudice. In the circumstances
Defendant, and indeed the public at large, are entitled to protection against the appearance of impropriety and the risk of prejudice attendant on abuse of confidence, however slight (cf. People v Zimmer,
For the reasons stated, the order of the Appellate Division should be reversed, defendant’s convictions vacated, and the case remitted to County Court, Sullivan County, for further proceedings on the indictment.
Dissenting Opinion
(dissenting). Upon the conceded facts and circumstances present in this case, I would not hold, as the majority does, that it was improper for the Sullivan County District Attorney’s office to prosecute defendant Shinkle merely because a member of its staff had at one time acted as defendant’s cocounsel while a member of the Sullivan County Legal Aid staff.
To adopt, as the majority has, a per se disqualification rule effecting thе entire staff of the office of the District Attorney, without a showing of prejudice or without re
This is precisely what County Court and the Appellate Division did in this case. After considering all the facts and circumstances, both courts found that the former Legal Aid attorney, Edward Leopold, upon his appointment as Chief Assistant District Attorney, was deliberately isolated from the rest of the District Attorney’s office in all pending cases in which the defendants were represented by Legal Aid. “[0]nce Leopold assumed his position in the prosecutor’s office,” the Appellate Division found, “he took immediate affirmative steps to avoid any prejudice to defendant and any appearance of impropriety which might have resultеd from his becoming Chief Assistant District Attorney. Not only did he have ‘conflict’ stickers placed on all cases involving the Legal Aid Society which were pending in the District Attorney’s office, but the staff of the office was ordered to refrain from discussing these cases with him and to deny him access to the files of such cases.” (73 AD2d, p 765.) This court is bound by such affirmed findings of fact unless there is no support in the record for such findings. (NY Const, art VI, § 3.) Yet, notwithstanding these affirmed findings of fact, the majority holds that defendant’s convictions for aggravated rape and other сrimes should be reversed because, as a matter of law, there is present in this case an “appearance of impropriety and the risk of prejudice [to the defendant] attendant on abuse of confidence.”
What abuse of confidence and what appearance of impropriety has been shown? As I stated before, the record clearly demonstrates that Leopold, upon joining the office of the District Attorney, took affirmative steps to isolate
I believe the better rule would be that unless there is some evidence presented to indicate actual prejudice to the defendant or there is some support in the record to question the integrity of the office of the District Attorney, no per se disqualification should be invoked. Where, as here, there is abolutely no evidence offered to indicate prejudice to the defendant or to raise even a question as to the integrity of the office оf the District Attorney, it simply cannot be said that there is an “appearance of impropriety”.
According to the majority, “[i]t is no answer that defendant offers no evidentiary proof of actual prejudice [or abuse of confidences]” as “[i]n the circumstances such proof would most likely be out of defendant’s reach.” I cannot agree. For example, in this case, where defendant took the stand in his own defense, confidences disclosed by the defendant to Leopold, if any, could be detectеd during the cross-examination of the defendant. None are alleged or even suggested. Similarly, the disclosure of unfavorable witnesses and other harmful facts, if any, confidentially divulged to Leopold by the defendant could also be ascer
As a result of this court’s holding, a special prosecutor must now be appointed in every instance in which a defendant has been prеviously represented by counsel who is in the employ of the local District Attorney’s office when that defendant’s case comes to trial. Not only do I have grave misgivings as to the severe impact on the administration of justice which will be occasioned by this per se rule of disqualification, but the majority’s view that a special prosecutor will somehow eliminate the “appearance of impropriety” and the “risk of prejudice” which they attribute to defense counsel’s change of employment ignorеs the reality of the situation. For instance, in the case at bar, the special prosecutor that will be assigned to defendant’s case will have access to the same files prepared by the Sullivan County District Attorney’s office and no doubt will have contаct with the attorneys of that office who were involved in the initial stages of defendant’s prosecution. Under these circumstances, it is somewhat anomalous that the majority finds solace in holding that the appointment of a special prosecutor will sоmehow expel the “appearance of impropriety” which they have found to so pervade the defendant’s case as to require reversal of his convictions merely because of Leopold’s presence in the office of the Sullivan County District Attorney at the time of the prosecution of the defendant.
Inasmuch as there are affirmed findings of fact that Leopold and the office of the District Attorney of Sullivan County took immediate affirmative steps to avoid any prejudice to defendant and to prevent even the appearance of impropriety, and where there was no evidence that the former Legal Aid attorney ever disclosed to the prosecution any information gained as a result of his prior representation of defendant or that the precautionary measures taken in isolating Leopold from the defendant’s case were ineffective, I would hold that it was not error for the office of the District Attorney of Sullivan County to prosecute the defendant and thаt the appointment of a special prose
Accordingly, I would affirm the order of the Appellate Division.
Order reversed, etc.