People v. Tyler

Appellate Division of the Supreme Court of the State of New York

Nov 16, 1994

Versions:209 A.D.2d 1028

619 N.Y.S.2d 475

1994 N.Y. App. Div. LEXIS 12073

—Judgment unanimously affirmed. Memorandum: County Court did not err in *1029refusing to dismiss the indictment. The appearance of impropriety resulting from the District Attorney’s prior representation of defendant is not, standing alone, a ground for disqualification of a public prosecutor. Rather, "[t]he objector should demonstrate actual prejudice or so substantial a risk thereof as could not be ignored” (Matter of Schumer v Holtzman, 60 NY2d 46, 55). Defendant failed to demonstrate actual prejudice or so substantial a risk thereof as to require dismissal of the indictment and resubmission by the special prosecutor.

Upon our review of the record, we conclude that the police officer had probable cause to arrest defendant (see, People v McCants, 175 AD2d 847). (Appeal from Judgment of Onondaga County Court, Mulroy, J.—Criminal Possession Controlled Substance, 4th Degree.) Present—Lawton, J. P., Fallon, Wesley, Doerr and Boehm, JJ.