Morgenthau v. Crane

• Decision Date: 14 November 1985
• Parties: In the Matter of the Application of Robert M. MORGENTHAU, as District Attorney of New York County, Petitioner, For a judgment under Article 78 of the Civil Practice Law and Rules in the nature of Prohibition, v. Hon. Stephen G. CRANE, as an Acting Justice of the Supreme Court, New York County, and Frank Brenner, Esq., as Special Prosecutor, Respondents.
• Court: New York Supreme Court — Appellate Division

Page 164

495 N.Y.S.2d 164

113 A.D.2d 20

In the Matter of the Application of Robert M. MORGENTHAU, as District Attorney of New York County, Petitioner For a judgment under Article 78 of the Civil Practice Law and Rules in the nature of Prohibition, v. Hon. Stephen G. CRANE, as an Acting Justice of the Supreme Court, New York County, and Frank Brenner, Esq as Special Prosecutor, Respondents.

Supreme Court, Appellate Division First Department.

Nov. 14, 1985.

Mark Dwyer, of counsel (Arthur G. Weinstein, New York City, attorney), for petitioner.

Jeffrey I. Slonim, of counsel (Robert Abrams, New York City, attorney), for respondents.

Before MURPHY, P.J., and SANDLER, ASCH, BLOOM and ELLERIN, JJ.

PER CURIAM:

The underlying criminal case herein arises out of a traffic accident which occurred on March 2, 1984 as a result of which the defendant, James Nuzzi, was arrested and charged with driving while intoxicated and reckless driving. Upon arraignment, the case was routinely assigned to the Trial Bureau of the District Attorney's office that was "on intake" on that date and following arraignment the case was in regular course directed to the Criminal Court All-Purpose (AP) Part regularly staffed by such Bureau. Coincidentally, defendant is the first cousin of an assistant district attorney, having the same surname, who is a member of that Trial Bureau.

Immediately after this coincidence was discovered, the case was reassigned to a different Trial Bureau in the District Attorney's office and was transferred to another AP part. Since that time, all assistant district attorneys have been explicitly instructed to have no contact with defendant's cousin concerning the case and it is not disputed that every possible step has been taken by the District Attorney's office to isolate defendant's cousin from any knowledge, contact or involvement in the prosecution.

Defendant moved as part of an omnibus motion in Criminal Court to disqualify the entire office of the New York County District Attorney and appoint a special prosecutor pursuant to County Law § 701 on the ground of defendant's consanguinity with one of the assistant district attorneys. The Criminal Court (Stanley Gartenstein, J.), properly finding that the statute vests the authority to appoint a special prosecutor exclusively in a superior court, denied the application without prejudice to its renewal in the proper forum. While the denial was posited on this jurisdictional ground, the Criminal Court also took occasion to address the facts and merits of the application in a thoughtful opinion which led it to conclude, albeit dicta, that denial would also be warranted on the merits because of the steps taken by the District Attorney's office to avoid any prejudice or appearance of impropriety. (People v. Anonymous, 126 Misc.2d 673, 676, 481 N.Y.S.2d 987.)

Defendant thereafter brought the instant motion in the Supreme Court seeking the same relief. That court granted the application to disqualify the New York County District Attorney's office and appointed a special prosecutor. The basis of the court's holding was its conclusion that the fact of a proximate blood relationship (in this case of the fourth degree) between a defendant and one of any number of assistant district attorneys, without more, mandates a per se disqualification of the entire prosecutor's office and requires the appointment of a special prosecutor. In this age of the nuclear family, we cannot agree with the conclusion reached below that such relationship, in and of itself and without any further showing, is "inherently prejudicial", particularly under circumstances such as those here present where the cousin is one of approximately 270 assistant district attorneys and has at no time had any contact with the case. (cf. People v. Schiskie, 76 A.D.2d 1017, 429 N.Y.S.2d 317.) Conjectural speculations, without any factual foundation, as to supposed "family intimacies and confidences" or defendant's possible "reputation among his relatives" somehow being used against him, are not a sufficient predicate from which to conclude either the existence of prejudice or the reasonable potential for prejudice.

While there is no precedent precisely on point, the efforts to analogize this situation to those in the cases relied upon by the court below are misplaced. The present fact pattern is in no way akin to that in People v. Shinkle, 51 N.Y.2d 417, 434 N.Y.S.2d 918, 415 N.E.2d 909, where the attorney who initially represented defendant and participated in the preparation of his defense subsequently became chief assistant in the office of the prosecutor during the months preceding and during defendant's trial. Clearly, where one who has actively served as the attorney for a defendant joins the prosecutor's office while the very case in which he previously represented defendant is still being prosecuted, there is an inherent impropriety and opportunity for abuse of confidences previously entrusted which strike at the very heart of the right of defendants "to both the fact and appearance of unswerving and exclusive loyalty on the part of attorneys who represent them." (People v. Shinkle, supra, at 421, 434 N.Y.S.2d 918, 415 N.E.2d 909.) No similar inference of impropriety can be said to spring from the mere fact that...