People v. Anonymous

• Decision Date: 20 November 1984
• Citation: 126 Misc.2d 673,481 N.Y.S.2d 987
• Parties: The PEOPLE of the State of New York v. ANONYMOUS, Defendant.
• Court: New York City Court

Page 987

481 N.Y.S.2d 987

126 Misc.2d 673

The PEOPLE of the State of New York v. ANONYMOUS, Defendant.

Criminal Court of the City of New York New York County, Part AP3.

Nov. 20, 1984.

Robert M. Morgenthau, Dist. Atty., New York City, New York County (Roslynn R. Mauskopf, New York City, of counsel), for the People.

Stephen D. Chakwin, Jr., New York City, for defendant.

STANLEY GARTENSTEIN, Judge:

Defendant, who is accused of reckless driving (Vehicle and Traffic Law § 1190); and driving while intoxicated (Vehicle and Traffic Law § 1192.2), is the first cousin of an Assistant District Attorney of New York County. He bears the same surname as his cousin.

Upon arraignment, because the Trial Bureau to which defendant's cousin is assigned was on "intake" that day, the case was allocated to the Criminal Court All-Purpose Part in which said Bureau functions. When this fortuitous coincidence was discovered, the case was re-assigned to a different Trial Bureau within the District Attorney's Office and transferred to a different All-Purpose Part not served by that Bureau.

Defendant moves for an order disqualifying the Office of the District Attorney of New York County from prosecuting this matter and appointing a special prosecutor pursuant to Section 701 of the County Law. In support of this motion, he claims that the very act of transferring this case internally within the office is itself an indication of special treatment; that the new Assistant District Attorney has already made clear her subjective knowledge of the re-assignment and the reasons for it; that the test of fairness is not only the subjective state of mind of the participants but also the objective effects of their conduct. The net effect of these arguments, it is claimed, is an unavoidable appearance of impropriety which cannot help but work to his detriment.

Defendant argues that the District Attorney's Office will go out of its way to dispel any inference of favoritism, thereby eliminating plea bargaining ^* and other courtesies extended during the normal prosecution of the average case. He further contends that since the District Attorney's Office is one law firm, i.e., a single entity under the law (cf. Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427), the entire office is tainted as a matter of law with this appearance of impropriety.

Preliminarily it is in order to point out that

"The District Attorney is a public officer. His duties are quasi-judicial in nature. His obligation is to protect, not only the public interest, but also the rights of the accused. In the performance of his duties, he must not only be disinterested and impartial, but must also appear to be so (People v. Lombard, 4 A.D.2d 666, 671 People v. Fielding, 158 N.Y. 542, 547 ). His primary duty is to see that justice is done. Because he is presumed to act impartially (People v. Fielding, supra, p. 547 ) he has wide latitude to determine whom, whether and how to prosecute (Matter of Johnson v. Boldmen, 24 Misc.2d 592 Matter of Hassan v. Magistrate's Ct. of the City of N.Y., 20 Misc.2d 509, app dismd 10 A.D.2d 908, cert. den. 364 U.S. 844 Matter of Coleman v. Lee, 1 Misc.2d 685 )."

(People v. Lofton, 81 Misc.2d 572, 575-576, 366 N.Y.S.2d 769.)

The power of a criminal court to supersede a prosecutor is governed by Section 701 of the County Law which reads in pertinent part:

"Whenever the district attorney of any county and his assistant, if he has one shall not be in attendance at a term of any court of record, which he is by law required to attend, or is disqualified from acting in a particular case to discharge his duties at a term of any court, a superior criminal court in the county wherein the action is triable may, by order appoint some attorney at law having an office in or residing in the county, ... to act as special district attorney during the absence, inability or disqualification of the district attorney and his assistant ... The board of supervisors of the county shall pay the necessary disbursements of, and a reasonable compensation for, the services of the person so appointed and acting, as certified by the presiding judge or justice."

It is significant to note that the restrictive language referring to a "superior criminal court" was added in 1974 (L.1974, ch. 456) and that these words replaced a more general reference to "the court." This would appear to foreclose consideration of the application before use without prejudice to renewal in a superior criminal court.

A reading of the statute, however, with particular reference to the body of enactments into which it has been codified, evokes fascinating doubts as to its primary thrust. A credible argument can be made, in spite of the specific language limiting this prerogative to a superior criminal court, for the proposition that this is primarily a funding statute owing to its position in the County Law rather than in the Criminal Procedure Law and that the language pertaining to funding, viz., that an order of a superior criminal court thereunder becomes, by operation of law, a charge upon the county--is in fact the important provision to the exclusion of the introductory language. This construction would appear to be reasonable by implication if in fact the traditional practice of recognizing prosecutors other than the Attorney-General or County District Attorneys in local criminal courts (the New York City Criminal Court included) is still sanctioned notwithstanding the seemingly restrictive 1974 amendment limiting this power to superior criminal courts.

It has been held that where the District Attorney of any county is aware of a prosecution or a term of court in which prosecutions are ordinarily held and chooses not to appear therein, he is held to have consented to prosecution by others. (People v. Van Sickle, 13 N.Y.2d 61, 242 N.Y.S.2d 34, 192 N.E.2d 9; People v. Czajka, 11 N.Y.2d 253, 228 N.Y.S.2d 809, 183 N.E.2d 216; People v. DeLeyden, 10 N.Y.2d 293, 220 N.Y.S.2d 961, 177 N.E.2d 924; People v. Leombruno, 10 N.Y.2d 900, 223 N.Y.S.2d 516, 179 N.E.2d 517; People v. Schildhaus, 4 N.Y.2d 883, 174 N.Y.S.2d 465, 150 N.E.2d 768.) This line of cases specifically includes prosecutions in local criminal courts in addition to those pending in a superior criminal court. It would appear that these cases are at variance with the seemingly restrictive terms of Section 701 whose introductory phrase reads "Whenever the district attorney ... shall not be in attendance at a term of any court of record ...". Thus, the line of cases sanctioning prosecution by persons other than the District Attorney in a local criminal court where he chooses not to appear would appear to conflict, at least at first blush with the terms of the statute--if their import is to be considered as a source of the court's authority to appoint as opposed to the power to charge the county when it does in fact exercise this apparently inherent (cf. People v. Burgos, NYLJ, Sept. 2, 1980; People v. Kissling, NYLJ, July 7, 1981, App. Term, 1st Dept.) power. This reading of Section 701 would appear to be consistent with the existence of Section 50 of the New York City Criminal Court Act which empowers this court to order a complaint upon application to it, a scheme which seemingly infringes on the CPL's award of uncontrolled discretion to decline prosecution to a District Attorney (cf. Hassan v. Magistrates Court, supra; Inmates of Attica v. Rockefeller, 477 F.2d 375). Nevertheless, the existence of this power preserves a venerated tradition (cf. People v. Vlasto, 78 Misc.2d 419, 355 N.Y.S.2d 983) and the statute validating it supersedes the Criminal Procedure Law where the two are inconsistent and an alternate scheme is prescribed for this court (N.Y.City Crim.Ct. Act, § 41, subd. 2).

While it would be possible to grant the application in question based upon this liberal construction of the statute, the basic fact emerges that we deal here not with a situation where a District Attorney consents by implication to prosecution by others as contemplated by...