In re Appointment of a Special Prosecutor Dated May 10, 2016

• Decision Date: 17 May 2016
• Citation: 36 N.Y.S.3d 775,52 Misc.3d 708
• Parties: In the Matter of the Application for the APPOINTMENT OF A SPECIAL PROSECUTOR DATED MAY 10, 2016.
• Court: New York County Court

52 Misc.3d 708

36 N.Y.S.3d 775

In the Matter of the Application for the APPOINTMENT OF A SPECIAL PROSECUTOR DATED MAY 10, 2016.

County Court, St. Lawrence County, New York.

May 17, 2016.

Mary E. Rain, District Attorney (Frank R. Cositore, Jr. of counsel), for petitioner.

JOHN F. RICHEY, J.

Before the court is an application by the St. Lawrence County District Attorney's Office for the appointment of a Special Prosecutor pursuant to County Law § 701. On May 5, 2016, the court received a letter from Frank R. Cositore, Jr. (hereinafter "Cositore"), who is the Chief Assistant District Attorney for St. Lawrence County. In that correspondence, it was requested that the court appoint a Special Prosecutor "in reference to the above-named criminal action and any matter presently pending in this office wherein Edward Narrow, Esq. is the attorney of record." Attached to the letter was a list of fifty-nine (59) pending cases involving the law firm of Dumas & Narrow.¹

The letter from Cositore further stated that the Office of the St. Lawrence County District Attorney should be disqualified from all of Attorney Narrow's cases "due to ethical restraints mandated by the cannons of ethics which have been implicated as a direct result of the grievance complaints filed by Mr. Narrow as well as other pending matters." The letter, which was addressed to the Hon. Derek P. Champagne, was referred to the undersigned pursuant to the terms of the 2016 Annual Order for the Fourth Judicial District, which designates the order of judges assigned to hear applications for Special Prosecutors in the absence or unavailability of the Hon. Jerome J. Richards.²

By letter dated May 5, 2016, this court advised Cositore to submit a sworn or affirmed³ Petition to Appoint a Special Prosecutor, alleging, with specificity, the purported conflict necessitating the appointment of a Special Prosecutor. The letter further requested that he support the petition with affidavits, particularly from the member of the office claiming the conflict, as well as any relevant documentary evidence.

On May 10, 2016, the court received a Petition and four Affirmations of Counsel, together with an Affidavit of Service by Mail of the same upon Attorney Narrow. Upon review of the petition and the affirmations and the requirements of CPLR § 2106, the court contacted Cositore regarding the insufficiency of the language of the affirmations, and advised him that the use of affirmations under CPLR § 2106 was inappropriate due to the fact that the District Attorney is a party to the action.

On May 12, 2016, Cositore submitted to the court a sworn petition,⁴ together with his own affidavit, and affidavits from District Attorney Mary Rain, Assistant District Attorney Joshua A. Haberkornhalm, and Assistant District Attorney Sara E. Clothier. The affidavit of Cositore contains the bulk of the factual allegations in support of the petition. The affidavits of Rain, Haberkornhalm, and Clothier support the request and adopt the statements of Cositore. There was also an Affidavit of Service by Mail of the corrected petition and supporting affidavits upon Attorney Narrow.

This matter has also been further complicated by the ongoing regular flow of cases before Judge Champagne in county court. Since the filing of the original request for a Special Prosecutor made in Cositore's May 5, 2016 letter, proceedings have been held before Judge Champagne in at least two cases involving the St. Lawrence County District Attorney's Office and Attorney Narrow. On May 10, 2016, Attorney Narrow and Assistant District Attorney Haberkornhalm appeared in the matter of People v. James Francis. While on the record in open court, the instant petition was discussed, inter alia, and Attorney Narrow joined in the request for the appointment of a special prosecutor in that specific case. Also on May 10, 2016, Attorney Narrow and Assistant District Attorney Haberkornhalm engaged in discussions on the record before Judge Champagne while in chambers in the matter of People v. Shawn G. Sheridan. These discussions then continued on the record in open court as between Attorney Narrow and Chief Assistant Cositore. While on the record in open court, Attorney Narrow requested the appointment of a special prosecutor in that specific case.

In light of the above listed discussions on the record, the references made therein, and upon review of the issues raised and set forth in the instant petition and supporting affidavits, the court has obtained and reviewed the relevant portions of the transcripts of the following proceedings: 1) People v. Girard R. Gillett dated April 7, 2016, before the Hon. Jerome J. Richards, and involving District Attorney Mary Rain, Chief Assistant District Attorney Frank Cositore, Law Intern Jonathan Jirik, Edward Narrow, Esq., and Thomas Finnerty, Esq.; 2) People v. Shawn G. Sheridan dated April 13, 2016, before the Hon. Jerome J. Richards, and involving District Attorney Rain, Chief Assistant Cositore, Assistant District Attorney David Park, Attorney Narrow, and Gerald J. Ducharme, Esq.; 3) People v. Shawn G. Sheridan dated May 10, 2016, supra; and 4) People v. James Francis dated May 10, 2016, supra.

No written response to the petition has been submitted by Attorney Narrow. When contacted by court staff to inquire whether he would be submitting a written response to the instant petition,⁵ Attorney Narrow indicated he did not intend to submit any responsive papers to supplement the statements he made on the record in the matters involving Shawn Sheridan and James Francis.

Turning to the petition and supporting affidavits, Cositore states that the request is based upon the general requirements of the New York State 2016 Ethical Guidelines for Prosecutors and the Rules of Professional Conduct, citing 22 NYCRR 1200 et al. More specifically, he states that the request is based upon "the actions and statements made on the record [by the involved parties] and to the media in the past several weeks and the controversies that have arisen."⁶

Upon review of the petition and supporting affidavits, the court can discern four distinct areas of conflict that are alleged to exist as between the District Attorney's Office and Attorney Narrow. The first conflict alleged is that District Attorney Rain and Cositore were "noticed of a complaint and claim of criminal fraud in open Court and on the record during a case involving Mr. Narrow as counsel." Cositore further alleges that the "case is now tainted; the members of the staff and defendant are now witnesses of that action and thus will be subject to being called as such." Neither the petition nor any of the supporting affidavits identify the particular case to which reference is made, or any other specific information as to the nature of the complaint and/or claim of fraud. That being the case, the alleged conflict can be put in context and analyzed only upon a review of the relevant portions of the transcript in the matter of the People v. Girard R. Gillett from April 7, 2016.

The relevant portion of the transcript of that proceeding is informative. The events that gave rise to the alleged conflict arose near the end of the evidentiary phase of a felony jury trial, over which the Hon. Jerome J. Richards was presiding, and which was being prosecuted by Cositore and Jonathan Jirik, a Law Intern operating under a practice certificate from the Appellate Division. At that time, the following colloquy occurred:

Mr. Narrow: Thank you, your honor. Judge, my understanding is that Mr. Jirik has a practice order and he needs to have someone in here with him at all times. So, I don't think we can do anything without ....am I right on that?

Mr. Jirik: Your Honor, Mr. Cositore just stepped out for a minute. Should be right back.

The Court: Where is your practice certificate, Mr. Jirik?

Mr. Jirik: I have a copy in my office, your Honor.

The Court: Please go get it.

After that exchange, Jirik retrieved his practice certificate and returned to the courtroom. Judge Richards then reviewed on the record Section 805.5 of the Rules of the Court, which sets forth the authorized activities in which an eligible law student or law school graduate can participate and engage. He then concluded there was no authorization for Jirik to try a felony criminal case. Attorney Narrow then moved to dismiss the indictment upon two grounds. The first was that Jirik did not have the authorization to prosecute the matter due to the limitations of his practice order, thus leading Narrow to speculate that Jirik had potentially committed the unauthorized practice of law. The second ground for dismissal was the People's failure to present a prima facie case. The court granted the People a brief recess, which was followed by this exchange:

The Court: Mr. Narrow, anything else you want to say about the unauthorized practice by Mr. Jirik?

Mr. Narrow: No, your Honor.

The Court: Mr. Cositore, anything else you want to say?

Mr. Cositore: No, your Honor. We have looked up the statute. Mr. Narrow is correct and the Court is correct. It was, obviously, a mistake in the office that he was assigned to the case somehow.

The court, following a lengthy analysis of relevant case law on the subject of the unauthorized practice of law, denied Attorney Narrow's motion to dismiss upon that ground. However, Judge Richards added the following:

The Court: ... So, to come in here and say, Judge, we didn't know—it is embarrassing, because it tells me that no one has read the law. And all of them, you, Mr. Jirik, you, Mr. Cositore, Ms. Rain, should be embarrassed and ashamed of yourselves, because you have perpetrated a fraud on the Court, whether intentionally or unwittingly, it doesn't matter. You are professionals. You are required to know the law and you come in here and say, well, sorry Judge, we didn't know the law. It is absolutely unacceptable. And I'm going to make a record. I'm going to write to Judge Peters at the Appellate

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