People v. Cruz
| Decision Date | 17 January 1977 |
| Citation | 55 A.D.2d 921,390 N.Y.S.2d 442 |
| Parties | The PEOPLE, etc., Respondent, v. Frank CRUZ, Appellant. |
| Court | New York Supreme Court — Appellate Division |
George Mancuso, New York City, for appellant.
David S. Ritter, Dist. Atty., Goshen (Richard L. Parker, Elmira, of counsel), for respondent.
Before COHALAN, Acting P.J., and MARGETT, DAMIANI and MOLLEN, JJ.
MEMORANDUM BY THE COURT.
Appeal by defendant from a judgment of the County Court, Orange County, rendered January 20, 1976, convicting him of criminal sale of a controlled substance in the third degree (two counts) and criminal possession of a controlled substance in the third degree (two counts), upon a jury verdict, and imposing sentence. The appeal also brings up for review the denial of defendant's motions to disqualify the prosecutor and for a mistrial.
Case remitted to the County Court for a hearing in accordance herewith, and appeal held in abeyance in the interim.
At defendant's arraignment on June 12, 1975, the Orange County Legal Aid Society was assigned to defend him. It appears that thereafter Norman Shapiro, then Chief Attorney of the Society, resigned his post and was appointed District Attorney of Orange County (see Matter of Fox v. Shapiro, 84 Misc.2d 223, 375 N.Y.S.2d 945). At the commencement of the trial, the defense moved to disqualify the prosecutor and for a mistrial. It appeared, in colloquy, that Mr. Shapiro did not disqualify himself in this case, but that he took steps to isolate himself from the prosecution of all pending cases. Defense counsel stated that he did not know what specific knowledge, if any, Mr. Shapiro had with reference to the case which would prejudice the defendant; the trial court denied the motions on the ground that there had been no showing of prejudice.
The defendant is entitled to a new trial if, and only if, he has been demonstrably prejudiced by the District Attorney's prior affiliation (see People v. Loewinger, 37 A.D.2d 675, 323 N.Y.S.2d 98, affd. 30 N.Y.2d 587, 330 N.Y.S.2d 801, 281 N.E.2d 847; see, also, Glasser v. United States, 315 U.S. 60, 76--77, 62 S.Ct. 457, 86 L.Ed. 680; United States v. Mari, 2 Cir., 526 F.2d 117; People v. Wilkins, 28 N.Y.2d 53, 320 N.Y.S.2d 8, 269 N.E.2d 756; People v. Gonzalez, 30 N.Y.2d 28, 330 N.Y.S.2d 54, 280 N.E.2d 882, cert. den. 409 U.S. 859, 93 S.Ct. 145, 34 L.Ed.2d 105; Magjuka v. Greenberger, 46 A.D.2d 867, 362 N.Y.S.2d 162). We are unable to determine on this record whether the...
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...has gone to judgment, whether an impropriety has resulted in prejudice becomes a relevant consideration. See People v. Cruz, 55 App.Div.2d 921, 921-922, 390 N.Y.S.2d 442 (N.Y.1977). Cf. Commonwealth v. Bottiglio, 357 Mass. 593, 598, 259 N.E.2d 570 (1970), and cases cited. When the improprie......
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...that defendant but who represented a defendant or his codefendant before joining the District Attorney's Office (People v. Cruz, 55 A.D.2d 921, 390 N.Y.S.2d 442; People v. Washington, 52 A.D.2d 984, 383 N.Y.S.2d 422; Fox v. Shapiro, 84 Misc.2d 223, 375 N.Y.S.2d 945; People v. Loewinger, 37 ......
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...the exercise of this discretion, the court commends attention to Fox v. Shapiro, 84 Misc.2d 223, 375 N.Y.S.2d 945, and People v. Cruz, 55 A.D.2d 921, 390 N.Y.S.2d 442. In these related cases, the former Chief Attorney of the Legal Aid Society of Orange County had been appointed by the Gover......
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