Czajka v. Koweek

• Decision Date: 08 November 2012
• Parties: In the Matter of Paul CZAJKA, as Columbia County District Attorney, Petitioner, v. Richard KOWEEK, as County Judge of Columbia County, Respondent, and Nicholas Fox, Respondent.
• Court: New York Supreme Court — Appellate Division

100 A.D.3d 1136

953 N.Y.S.2d 394

2012 N.Y. Slip Op. 07365

In the Matter of Paul CZAJKA, as Columbia County District Attorney, Petitioner,

v. Richard KOWEEK, as County Judge of Columbia County, Respondent,andNicholas Fox, Respondent.

Supreme Court, Appellate Division, Third Department, New York.

Nov. 8, 2012.

Paul Czajka, District Attorney, Hudson (H. Neal Conolly of counsel), for petitioner.

John M. Leonardson, Conflict Defender, Hudson, for Nicholas Fox, respondent.

Before: LAHTINEN, J.P., STEIN, GARRY and EGAN JR., JJ.

EGAN JR., J.

Proceeding pursuant to CPLR article 78 (initiated in this Court pursuant to CPLR 506[b][1] ) to prohibit respondent County Judge of Columbia County from enforcing an order which, among other things, disqualified petitioner and his staff from further prosecuting a criminal case against respondent Nicholas Fox and appointed a special district attorney.

A defendant in a criminal case should not find himself or herself in the unenviable position of being prosecuted by the former judge who had earlier presided over the case. Judiciary Law § 17 bars such a practice and petitioner's application should be dismissed.

In April 2010, respondent Nicholas Fox was charged with various crimes in Columbia County. Petitioner, then a County Judge of Columbia County, thereafter presided over certain preliminary aspects of Fox's criminal case, including the initial arraignment, the subsequent arraignment upon the superceding indictment, a motion by the Columbia County Public Defender's office to disqualify itself and the unsealing of a search warrant. In May 2011, petitioner resigned from the bench to seek the office of District Attorney of Columbia County and, in November 2011, was duly elected to that position. Accordingly, upon taking office in January 2012, petitioner assumed responsibility for Fox's criminal prosecution.

In May 2012, Fox moved before petitioner's successor, respondent Richard Koweek, as County Judge of Columbia County (hereinafter respondent), seeking to disqualify petitioner and his staff and to appoint a special district attorney. Respondent granted Fox's application, finding that Judiciary Law § 17 mandated petitioner's disqualification as a matter of law and appointed the District Attorney of Greene County as special district attorney in the underlying criminal proceeding. Petitioner thereafter commenced this proceeding pursuant to CPLR article 78 seeking to vacate respondent's order of disqualification.¹

Preliminarily, to the extent that Fox contends that respondent's actions are not reviewable in the context of a CPLR article 78 proceeding in the nature of prohibition, we need note only that this very argument was considered and rejected by a majority of this Court in Matter of Soares v. Herrick, 88 A.D.3d 148, 152, 928 N.Y.S.2d 386 [2011]. Fox's related claim—that petitioner lacks legal capacity to commence this proceeding—is equally unavailing. To be sure, a district attorney is not expressly authorized by statute to commence a CPLR article 78 proceeding and, indeed, is limited to exercising only those powers “ ‘conferred by the Legislature, either expressly or by necessary implication’ ” (Matter of Schmitt v. Skovira, 53 A.D.3d 918, 921, 862 N.Y.S.2d 167 [2008], quoting Czajka v. Breedlove, 200 A.D.2d 263, 265, 613 N.Y.S.2d 741 [1994],lv. denied84 N.Y.2d 809, 621 N.Y.S.2d 519, 645 N.E.2d 1219 [1994];see Matter of Schermerhorn v. Becker, 64 A.D.3d 843, 845–846, 883 N.Y.S.2d 325 [2009] ). However, County Law § 700(1) provides, in relevant part, that “it shall be the duty of every district attorney to conduct all prosecutions for crimes and offenses cognizable by the courts of the county for which he or she shall have been elected or appointed.” To our analysis, the capacity to commence a proceeding against a body or officer who frustrates the discharge of that statutory duty may be inferred by necessary implication ( see generally Silver v. Pataki, 96 N.Y.2d 532, 537, 730 N.Y.S.2d 482, 755 N.E.2d 842 [2001];Matter of People v. Christensen, 77 A.D.3d 174, 187–188, 906 N.Y.S.2d 301 [2010];Matter of Town of Riverhead v. New York State Dept. of Envtl. Conservation, 50 A.D.3d 811, 812, 858 N.Y.S.2d 183 [2008] ).

Nor are we persuaded that this Court lacks personal jurisdiction over Fox due to certain alleged defects in service. Simply put, Fox subjected himself to the jurisdiction of this Court by moving to intervene in this proceeding ( compare Jacobs v. Jacobs, 229 A.D.2d 712, 714, 645 N.Y.S.2d 342 [1996] ) and lacks standing to challenge the propriety of the service effectuated upon respondent ( see generally Matter of Defreestville Area Neighborhoods Assn., Inc. v. Tazbir, 23 A.D.3d 70, 73, 800 N.Y.S.2d 474 [2005],lv. denied5 N.Y.3d 711, 804 N.Y.S.2d 35, 837 N.E.2d 734 [2005];Home Sav. of Am. v. Gkanios, 233 A.D.2d 422, 423, 650 N.Y.S.2d 756 [1996] ). Finally, as there has been no showing that the District Attorney of Greene County may be inequitably affected by the outcome of this proceeding or that complete relief cannot be accorded to the parties in his absence ( seeCPLR 1001[a] ), the failure to join him as a party does not compel dismissal.

Turning to the merits, the relevant inquiry is not—as petitioner suggests—whether he is “compromised in the potential vigor with which he will represent the People” in the criminal prosecution against Fox or, alternatively, “whether he is possessed of privileged information” that would give the People “an unfair advantage” in connection therewith. Rather, the sole question to be resolved by this Court is whether Judiciary Law § 17 permits petitioner to appear as a district attorney in the underlying criminal proceeding in the first instance. In our view, he may not.

To be sure, and as this Court previously has acknowledged, a “district attorney is a constitutional officer, chosen by the electors of his or her county to prosecute all crimes and offenses, who enjoys wide latitude and discretion to allocate and use...