In the Matter of P. David Soares v. Herrick

• Decision Date: 04 August 2011
• Citation: 928 N.Y.S.2d 386,88 A.D.3d 148,2011 N.Y. Slip Op. 06158
• Parties: In the Matter of P. David SOARES, as District Attorney of Albany County, Petitioner,v.Stephen W. HERRICK, as Judge of the County Court of Albany County, Respondent,andNaomi Loomis, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

88 A.D.3d 148

928 N.Y.S.2d 386

2011 N.Y. Slip Op. 06158

In the Matter of P. David SOARES, as District Attorney of Albany County, Petitioner,

v.Stephen W. HERRICK, as Judge of the County Court of Albany County, Respondent,andNaomi Loomis, et al., Respondents.

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

Aug. 4, 2011.

P. David Soares, District Attorney, Albany (Christopher D. Horn of counsel), for petitioner.Dreyer Boyajian, L.L.P., Albany (William J. Dreyer of counsel) and E. Stewart Jones, P.L.L.C., Troy (E. Stewart Jones Jr. of counsel), for Naomi Loomis and others, respondents.Before PETERS, J.P., ROSE, LAHTINEN, MALONE, JR. and GARRY, JJ.PETERS, J.P.

Proceeding pursuant to CPLR article 78(initiated in this Court pursuant to CPLR 506[b][1]) to prohibit respondent County Judge of Albany County from enforcing two orders which, among other things, disqualified petitioner and his staff from further prosecuting a criminal case against respondentsNaomi Loomis, Robert Loomis, Kenneth Michael Loomis, Kirk Calvert and Tony Palladino, and appointed a Special District Attorney.

In 2007, petitioner obtained an indictment against respondentsNaomi Loomis, Robert Loomis, Kenneth Michael Loomis, Kirk Calvert and Tony Palladino(hereinafter collectively referred to as the defendants) in connection with the alleged sale of steroids and other prescription drugs over the Internet.When the defendants challenged the indictment against them, respondent County Judge of Albany County(hereinafter respondent) found flaws that led to a series of successive indictments, each dismissed in turn with leave to re-present.After respondent's dismissal of the fourth indictment, this time without leave to re-present, the People appealed.Prior to the perfection of the appeal, the defendants commenced a civil action in federal court in Florida claiming, among other things, that petitioner and his staff had violated their constitutional rights in connection with the investigation and arrests in the criminal case.This Court then modified respondent's dismissal of the fourth indictment by granting the People leave to re-present ( People v. Loomis,70 A.D.3d 1199, 896 N.Y.S.2d 208[2010] ).

Soon after a fifth indictment was returned, the federal court determined that petitioner and his staff were not entitled to immunity or summary judgment on certain claims in the civil action.When, in the context of the criminal case, the defendants then challenged the fifth indictment, respondent dismissed it with leave to re-present, but found petitioner and his staff to have a conflict of interest due to their exposure to liability in the civil action.Accordingly, respondent disqualified petitioner and his staff from further prosecution of the case and appointed a Special District Attorney to pursue re-presentation.Petitioner then commenced this proceeding pursuant to CPLR article 78 seeking to prohibit enforcement of respondent's orders disqualifying him and appointing a Special District Attorney.

Our inquiry begins with the well-settled premise that a CPLR article 78 proceeding in the nature of prohibition is the proper vehicle through which to challenge a trial court's disqualification of a District Attorney and the appointment of a Special District Attorney( seeMatter of Schumer v. Holtzman,60 N.Y.2d 46, 54, 467 N.Y.S.2d 182, 454 N.E.2d 522[1983];Matter of Cloke v. Pulver,243 A.D.2d 185, 188, 675 N.Y.S.2d 650[1998];Matter of Wilcox v. Dwyer,73 A.D.2d 1016, 1017, 423 N.Y.S.2d 964[1980];Matter of Board of Supervisors of Montgomery County v. Aulisi,62 A.D.2d 644, 646, 406 N.Y.S.2d 570[1978], affd.46 N.Y.2d 731, 413 N.Y.S.2d 374, 385 N.E.2d 1302[1978] ).The specific question presented here is whether review is permissible by an appellate court, and relief available through a writ of prohibition, where a trial court disqualifies a District Attorney and appoints a Special District Attorney, pursuant to County Law § 701, for the reason that the former is allegedly suffering from a conflict of interest.This Court's jurisprudence has answered that question in the negative ( seeMatter of Dentes v. Rowley,285 A.D.2d 804, 805, 727 N.Y.S.2d 761[2001];Matter of Reina v. Coccoma,256 A.D.2d 988, 990, 683 N.Y.S.2d 312[1998];Matter of Dentes v. Friedlander,167 A.D.2d 757, 758, 563 N.Y.S.2d 319[1990];Matter of Kavanagh v. Vogt,88 A.D.2d 1049, 1049, 452 N.Y.S.2d 684[1982], affd.58 N.Y.2d 678, 458 N.Y.S.2d 527, 444 N.E.2d 991[1982] ).¹However, upon further consideration and analysis, and acknowledging that the First and Second Departments have established a different and, we think, more sound approach ( seeMatter of Dillon v. Kowtna,270 A.D.2d 219, 704 N.Y.S.2d 511[2000];Matter of Johnson v. Collins,210 A.D.2d 68, 620 N.Y.S.2d 28[1994];Matter of Morgenthau v. Crane,113 A.D.2d 20, 495 N.Y.S.2d 164[1985];see alsoMatter of Morgenthau v. Altman,207 A.D.2d 685, 616 N.Y.S.2d 365[1994], lv. denied84 N.Y.2d 812, 622 N.Y.S.2d 915, 647 N.E.2d 121[1995] ), we find respondent's action to be reviewable and, on the record before us, that he exceeded his authority in disqualifying petitioner.

In determining whether to exercise its discretion and issue a writ of prohibition, a court must weigh a number of factors, which include the gravity of the harm caused by the act sought to be prohibited, whether the harm can be adequately corrected on appeal or by recourse to ordinary proceedings at law or in equity, and the remedial effectiveness of prohibition if such an adequate remedy does not exist ( seeMatter of Rush v. Mordue,68 N.Y.2d 348, 354, 509 N.Y.S.2d 493, 502 N.E.2d 170[1986];Matter of Dondi v. Jones,40 N.Y.2d 8, 13, 386 N.Y.S.2d 4, 351 N.E.2d 650[1976] ).Here, we find the potential harm most grave, in that County Law § 701 vests exceptional authority in the judicial branch to supplant a member of the executive branch who is duly elected and charged with “ ‘the responsibility for prosecuting offenders in the county [he or she] represent[s] and possessing broad discretion in determining when and in what manner to do so’ ”( Matter of Cloke v. Pulver,243 A.D.2d at 189, 675 N.Y.S.2d 650, quotingMatter of Holtzman v. Goldman,71 N.Y.2d 564, 573, 528 N.Y.S.2d 21, 523 N.E.2d 297[1988];seePeople v. Leahy,72 N.Y.2d 510, 513–514, 534 N.Y.S.2d 658, 531 N.E.2d 290[1988];Matter of Schumer v. Holtzman,60 N.Y.2d at 54–55, 467 N.Y.S.2d 182, 454 N.E.2d 522;see alsoMatter of Kavanagh v. Vogt,88 A.D.2d at 1050, 452 N.Y.S.2d 684[Levine, J., dissenting] ).Additionally, we are troubled by the fact that, absent substantive review by way of a CPLR article 78 proceeding in the nature of prohibition, a party seeking review of the disqualification of a District Attorney and subsequent appointment of a Special District Attorney pursuant to County Law § 701, other than a criminal defendant, has no recourse at law ( see e.g.CPL 450.20).Thus, we find it problematic that our Court's jurisprudence has created a situation in which a determination rendered by a trial court in an active criminal matter is beyond review.

Moreover, we believe that substantive review of trial court decisions using the writ of prohibition in this context is consistent with the Court of Appeals' decision in La Rocca v. Lane,37 N.Y.2d 575, 376 N.Y.S.2d 93, 338 N.E.2d 606[1975], cert. denied424 U.S. 968, 96 S.Ct. 1464, 47 L.Ed.2d 734[1976] ), wherein the Court held that prohibition is appropriate to review whether or not a court has exceeded its authority even in a situation where the court undoubtedly had the discretion to act.In La Rocca,the Court held that, while a trial court has the authority to regulate the conduct and appearance of counsel in proceedings before it, that authority is not unlimited and prohibition is available to restrain an inferior court judge from exceeding his or her authority ( id. at 577, 376 N.Y.S.2d 93, 338 N.E.2d 606).As Chief Judge Breitel taught:

“[T]here is no sharp line between a court acting in error under substantive or procedural law and a court acting in excess of its powers, if only because every act without jurisdiction or in excess of its powers in a proceeding over which it has jurisdiction of necessity involves an ‘error of law.’But the absence of bright lines of demarcation in the law is not unusual; man's language and capacity to conceptualize is not perfect.The fact is that in extreme enough cases the distinction is easily apparent.At one extreme, a trivial error in excess of jurisdiction may be just that, trivial, and hardly worthy of treatment as an excess of power.On the other hand, at the other extreme, a gross abuse of power on its face and in effect may be in reality so serious an excess of power incontrovertibly justifying and requiring summary correction”( id. at 580, 376 N.Y.S.2d 93, 338 N.E.2d 606).

For the foregoing reasons, we depart from this Court's prior holdings and find that respondent's action here is reviewable by way of a proceeding in the nature of prohibition to determine whether he exceeded his authority in disqualifying petitioner and appointing a Special District Attorney.

Turning to the merits then, we find that respondent, indeed, exceeded his authority.The appearance of impropriety, standing alone, may not cause the disqualification of a District Attorney; rather, an objector must “demonstrate actual prejudice or so substantial a risk thereof as could not be ignored”( Matter of Schumer v. Holtzman,60 N.Y.2d at 55, 467 N.Y.S.2d 182, 454 N.E.2d 522;seePeople v. English,88 N.Y.2d 30, 33–34, 643 N.Y.S.2d 16, 665 N.E.2d 1056[1996];People v. Zimmer,51 N.Y.2d 390, 393, 434 N.Y.S.2d 206, 414 N.E.2d 705[1980];Matter of Dillon v. Kowtna,270 A.D.2d at 219, 704 N.Y.S.2d 511;Matter of Reina v. Coccoma,256 A.D.2d at 990, 683 N.Y.S.2d 312;Matter of Johnson v. Collins,210 A.D.2d at 69–70, 620 N.Y.S.2d 28;Matter of Morgenthau v....