Holtzman v. Hellenbrand
| Decision Date | 26 May 1987 |
| Citation | 515 N.Y.S.2d 843,130 A.D.2d 749 |
| Parties | In the Matter of Elizabeth HOLTZMAN, etc., Petitioner, v. Julius HELLENBRAND, etc., et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Nikki Kowalski and Linda Starr, of counsel), pro se.
Caesar D. Cirigliano, New York City (Steven G. Asin and Russell Neufeld, of counsel), for respondent Higgs.
Before MOLLEN, P.J., MANGANO, J.P., and THOMPSON, BRACKEN and SULLIVAN, JJ.
MEMORANDUM BY THE COURT.
Proceeding pursuant to CPLR Article 78, inter alia, in the nature of an application for a writ of prohibition, to (1) prohibit the enforcement of an order of the Supreme Court, Kings County, dated November 5, 1986, which appointed the respondent William Booth as a Special District Attorney to investigate certain allegations of criminal conduct, and (2) enjoin the Special District Attorney from undertaking any duties pursuant to said appointment.
ADJUDGED that the petition is granted, on the law, without costs or disbursements, enforcement of the order dated November 5, 1986, is hereby prohibited, and the respondent Booth is hereby prohibited from undertaking any duties pursuant to that order.
On August 15, 1986, the respondent Joe Higgs, was arrested on suspicion of having assaulted one Martin Yates. Based on the investigation conducted by the arresting officer and various representatives of the Office of the District Attorney of Kings County, formal charges were brought against Higgs for the crimes of criminal possession of a weapon in the fourth degree and assault in the third degree. That criminal proceeding is currently pending.
Subsequent to the commencement of the criminal proceedings against him, Higgs sought to have criminal charges brought against Yates, the victim of his alleged assault. The attorney from the Legal Aid Society assigned to defend Higgs spoke to a Legal Assistant in an office of the District Attorney. The Legal Assistant informed Higgs' attorney that Higgs' criminal complaint against Yates would not be processed by the District Attorney's Office.
The Legal Aid Society, by notice of motion dated September 16, 1986, subsequently requested an order appointing Mr. Higgs' attorney or, in the alternative, another attorney, as a Special District Attorney assigned to investigate Higgs' complaint and, if necessary, to prosecute Yates. An Assistant District Attorney submitted an affirmation in opposition to this motion in which she stated, upon information and belief, that no representative of the District Attorney had ever indicated that Yates could not be prosecuted because of a conflict of interest. The Supreme Court apparently found the foregoing assertion to be insufficient to rebut the movant's assertion that a representation had been made that such a conflict of interest existed.
The Supreme Court (Hellenbrand, J.), by order dated November 5, 1986, granted the application to the extent that the respondent Booth was appointed to investigate Higgs' allegation, and to report and make further application to the court in the event he should determine that prosecution of Yates is warranted. The District Attorney of Kings County then commenced this proceeding in this court (see, CPLR 7804[b]; 506[b][1] ), inter alia, seeking vacatur of the foregoing order. For the reasons that follow, the relief requested by the District Attorney should be granted.
First, it is clear that the order of Justice Hellenbrand is reviewable in this collateral proceeding. In Matter of Schumer v Holtzman, 60 N.Y.2d 46, 54, 467 N.Y.S.2d 182, 454 N.E.2d 522, the Court of Appeals stated that "prohibition is an appropriate remedy to void the improper appointment of a prosecutor when made by a court (see, generally, Matter of Board of Supervisors v. Aulisi, 62 A.D.2d 644, 406 N.Y.S.2d 570, affd. 46 N.Y.2d 731, 413 N.Y.S.2d 374, 385 N.E.2d 1302; Matter of Wilcox v. Dwyer, 73 A.D.2d 1016, 423 N.Y.S.2d 964)". Accordingly, the propriety of Justice Hellenbrand's order is a question which is properly before us in this proceeding.
Turning to the merits, we find that the order of Justice Hellenbrand is contrary to the well-settled rule that a District Attorney, who is the officer chosen by the people "to conduct all prosecutions for crimes and offenses cognizable by the courts of the county for which he shall have been elected" (County Law § 700[1] ), is presumed to act impartially (People v. Fielding, 158 N.Y. 542, 547, 53 N.E. 497...
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