People v. DeFreese
Decision Date | 30 July 1979 |
Citation | 418 N.Y.S.2d 959,71 A.D.2d 689 |
Parties | The PEOPLE, etc., Respondent, v. David DeFREESE, Appellant. |
Court | New York Supreme Court — Appellate Division |
Before, MOLLEN, P. J., and HOPKINS, TITONE and SHAPIRO, JJ.
MEMORANDUM BY THE COURT.
Appeal by defendant from a judgment of the County Court, Orange County, rendered February 11, 1976, convicting him of grand larceny in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial of defendant's motion to disqualify the District Attorney and to have a special prosecutor appointed to prosecute the case.
By order dated May 1, 1978, this court remitted the case to the County Court for a hearing to afford the defendant the opportunity to demonstrate that he had been prejudiced by his representation prior to the trial by the then Chief Attorney of the Legal Aid Society of Orange County, who subsequently accepted an interim appointment as Orange County District Attorney (Norman Shapiro). The appeal was held in abeyance in the interim (People v. DeFreese, 63 A.D.2d 653, 405 N.Y.S.2d 412). The County Court has complied and rendered a report in accordance therewith.
Judgment affirmed.
At the hearing it was established that Mr. Shapiro personally represented defendant at his arraignment on November 6, 1974, that he was Chief Attorney of the Orange County Legal Aid Society until August 19, 1975, and that he had personal knowledge of defendant's case while he was with that organization.
The hearing record also reveals that as soon as he was appointed District Attorney, sometime after August 19, 1975, Mr. Shapiro ordered that all pending cases in which defendants were represented by Legal Aid, be physically separated from other pending cases and placed under the direct and sole responsibility of Assistant District Attorney Martin Goldberg. After being placed in full charge of such cases, Mr. Goldberg authorized their disposition, assigned other Assistant District Attorneys to try them, and reported to no one about anything pertaining to them.
With respect to defendant's case, Mr. Goldberg assigned Assistant District Attorney Zeccola to handle it. The latter prepared and tried the case against defendant. Mr. Shapiro never discussed the case with either Mr. Goldberg or Mr. Zeccola. In fact, except in one instance, Mr. Shapiro, while District Attorney, never discussed defendant or his case with anyone. The one exception involved a threatening letter sent defendant at the jail which was intercepted by the Sheriff's office and forwarded to Mr. Shapiro as District Attorney. Since the missive had been sent by United States mail, Mr. Shapiro forwarded the matter to postal authorities.
Based on the foregoing facts we are convinced that during his tenure as District Attorney, Mr. Shapiro completely and effectively isolated and disassociated himself from defendant's case and the prosecution thereof. Moreover, it is manifest from the record that defendant has not been demonstrably prejudiced by Mr. Shapiro's prior affiliation. Accordingly, the judgment should be affirmed (see People v. Cruz, 60 A.D.2d 872, 401 N.Y.S.2d 267; see, also, 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).
HOPKINS, Justice, dissents and votes to reverse the judgment and order a new trial, with the following memorandum:
We remitted this case to the County Court, Orange County, to hear and report on the denial of the defendant's motion to disqualify the District Attorney and to appoint a special prosecutor (People v. DeFreese, 63 A.D.2d 653, 405 N.Y.S.2d 412).
The report of the County Court Judge finds that Norman Shapiro, Chief Attorney for the Legal Aid Society of Orange County, represented the defendant after the defendant's indictment at the arraignment of the defendant on November 6, 1974. The record further indicates that by notice of motion dated September 6, 1974, Mr. Shapiro, while representing the defendant, moved for an order directing a mental examination to determine the defendant's competency to stand trial and to assist in his defense, and further determine whether the defendant suffered from a mental disease or defect. That motion on behalf of the defendant was granted. In an affidavit in support of the motion Mr. Shapiro stated:
After August 19, 1975 Mr. Shapiro became District Attorney of Orange County. The defendant was thereafter prosecuted by Assistant District Attorney Zeccola, under an assignment from Assistant District Attorney Martin Goldberg. The report finds that Mr. Shapiro, while District Attorney, placed Mr. Goldberg in charge of all cases within the District Attorney's office in which the Legal Aid Society represented the defendant before Mr. Shapiro became District Attorney and while Mr. Shapiro was the Chief Attorney of the Legal Aid Society. The report further finds that there was no actual prejudice to the defendant by the denial of the defendant's motion since Mr. Shapiro, while District Attorney, had insulated himself from the defendant's case.
In my view, actual prejudice must be found to have resulted to the defendant by Mr. Shapiro's actions. Mr. Shapiro personally represented the defendant at the arraignment. Necessarily, Mr. Shapiro, in order to properly represent the defendant at that time, must have discussed with the defendant the facts and circumstances of the case and defendant's defense particularly since a plea of not guilty was entered by the defendant. Moreover, the affidavit of Mr. Shapiro indicates that he had consulted with the defendant.
I do not consider it of any moment that Mr. Shapiro attempted to insulate himself from the defendant's case while Mr. Shapiro was District Attorney. In Cardinale v. Golinello, 43 N.Y.2d 288, 295-296, 401 N.Y.S.2d 191, 194, 372 N.E.2d 26, 29, the court said:
...
To continue reading
Request your trial-
People v. Sawyer
...steps ordered by the court to avoid prejudice to defendant apparently complied with the law at the time (see People v. DeFreese, 71 A.D.2d 689, 418 N.Y.S.2d 959; People v. Cruz, 60 A.D.2d 872, 401 N.Y.S.2d 267; and cf. People v. Shinkle, 51 N.Y.2d 417, 434 N.Y.S.2d 918, 415 N.E.2d 909).2 Co......
-
Commonwealth v. Miller
...are to be commended for the thoroughness and clarity of their briefs. [5] Additional such New York cases include People v. DeFreese, 71 A.D.2d 689, 418 N.Y.S.2d 959 (1979); People v. Cruz, 60 A.D.2d 872, 401 N.Y.S.2d 267 (1968); v. Shapiro, 84 Misc.2d 223, 375 N.Y.S.2d 945 (1975). [6] Addit......
-
People v. Nuzzi
...A denial of the motion would be reviewable on appeal to the Appellate Term from any judgment of conviction. (See e.g., People v. De Freese, 71 A.D.2d 689, 418 N.Y.S.2d 959.) The prosecutor could not appeal an order granting such an application. This is not one of the orders enumerated in CP......
-
People v. Cooper
...v. Zimmer, 51 N.Y.2d 390; Greene v. Greene, 47 N.Y.2d 447; Cardinale v. Golinello, 43 N.Y.2d 288; People v. DeFreese, 71 A.D.2d 689, 690 [dissenting opn by Mr. Justice JAMES D. HOPKINS]; ABA Standards Relating to Prosecution Function, § 1.2 subds [a], [b], par [iii]; Code of Professional Re......