73 A.D.2d 764 | N.Y. App. Div. | 1979
Lead Opinion
Appeal from a judgment of the County Court of Sullivan County, rendered July 31, 1978, upon a verdict convicting defendant of the crimes of rape in the first degree, petit larceny, unauthorized use of a motor vehicle and assault in the third degree. As a result of an incident which occurred at approximately 2:00 a.m. on March 8, 1978 in the Town of Liberty, Sullivan County, wherein, inter alia, one Dorothy Gallegos was forcibly raped and $2 in currency was taken from her and one Darlene Carlson was struck and choked and her automobile was taken without her permission, defendant was convicted, following a jury trial, of the crimes of rape in the first degree, petit larceny, assault in the third degree and unauthorized use of a vehicle. He was thereupon sentenced, as a second felony offender, to concurrent terms of 12 16. to 25 years on the rape conviction and one year on each of the other three convictions, and the present appeal ensued. Seeking a reversal of his convictions, defendant initially argues that it was reversible error for the District Attorney of Sullivan County and his staff to prosecute this case because Edward Leopold, the Chief Assistant District Attorney, had formerly represented defendant in the beginning stages of this criminal proceeding as Executive Director of the Legal Aid Society of Sullivan County. We disagree. While it is true that Leopold was actively involved as associate counsel for the defense in the early stages of this case and that he interviewed defendant
Dissenting Opinion
dissent and vote to reverse in the following memorandum by Kane, J. Kane J. (dissenting). We are in accord with the statement of the majority that this record contains overwhelming proof of defendant’s guilt beyond a reasonable doubt. Nevertheless, the serious ethical questions developed in the course of these proceedings are so pervasive that we conclude a reversal is mandated. Lepold’s contacts with the defendant were significant and extensive. Before his appointment as Chief Assistant District Attorney, he had worked closely with defendant’s trial counsel while serving as the Executive Director and Attorney-in-Chief of the Sullivan County Legal Aid Society. He interviewed the defendant a number of times over a nine-month period, acquired an intimate knowledge of all the facts, and was most instrumental in the preparation of defendant’s insanity defense. We cannot subscribe to the view that the burden of showing any prejudice rests with the defendant. Just how he would go about demonstrating actual prejudice escapes us. Moreover, even if the measures adopted by the prosecution to insulate itself from Leopold’s prior involvement were of proven effectiveness in practice, defendant is entitled to a new trial. The ethical considerations and the appropriate requirements for the resolution of conflicting interests are ably set forth in the dissenting opinion of Mr. Justice Hopkins in People v De Freese (71 AD2d 689). We find them to be compelling and believe that they should control the outcome of this similar case. Accordingly, we would reverse as a matter of law and grant a new trial with a Special Prosecutor.