People v. Gallagher
| Decision Date | 06 July 1988 |
| Citation | 531 N.Y.S.2d 970,140 Misc.2d 281 |
| Parties | The PEOPLE of the State of New York, v. John GALLAGHER and Albert Sinram, Defendants. |
| Court | New York Supreme Court |
Stephen P. Scaring, Sp. Asst. Dist. Atty., Mineola, Robert Abrams, Atty. Gen., Hauppauge, by Carolyn A. Cairns, for the People.
Clayton, Miller & Mayer, by David Clayton, Hauppauge, for defendant Gallagher.
James F. Clarke, P.C., by Stephen M. Spahr, Westbury, for defendant Sinram.
Defendants, Suffolk County Police Captain John Gallagher (4 counts) and Suffolk County Police Officer Albert Sinram (1 count) are alleged to have prepared and thereafter filed with the Suffolk County District Attorney falsified police forms which resulted in Gallagher's son, Timothy, receiving a sentence of probation (as opposed to incarceration) on a pending narcotics conviction. The forms claim that Timothy Gallagher, acting as a police informant, provided information leading to narcotics arrests whereas he allegedly never engaged in such role.
Presentation of this case to the grand jury was by Stephen P. Scaring, Esq., a special district attorney appointed pursuant to County Law Sec. 701.
Defendants seek dismissal of all charges contending that Scaring's appointment was both illegal and unconstitutional.
Initially, these charges surfaced during an investigation by the Temporary State Commission of Investigation ("Commission") into claims of misconduct by the Suffolk Police Department and the District Attorney's office. Similar inquiry was also undertaken by the United States Attorney, Eastern District, New York.
On May 27, 1987, assistant district attorney Steven A. Hovani applied to Hon. Thomas M. Stark, Supervising Justice, for appointment of a special district attorney pursuant to County Law Sec. 701 to investigate "possible charges against Suffolk County Law enforcement officials or personnel" (Aff. Steven A. Hovani, 5/27/87). In relevant part, Hovani averred:
On May 29, 1987, Justice Stark appointed Harvey Arnoff, Esq. as special district attorney.
In a letter request dated June 16, 1987, David G. Trager, Commission chairman asked Justice Stark to revoke Arnoff's appointment variously claiming (1) that the Suffolk District Attorney violated a verbal agreement to inform the Commission regarding any application for a special district attorney; (2) Arnoff was inexperienced in criminal matters; (3) that if experienced, issues exist (but not specified) regarding Arnoff's relationship with the district attorney's office; (4) Arnoff's proposed choice of investigators raises questions as to his suitability as a special district attorney; and (5) conflict of interests (again unspecified). Also unexplained is why a copy of this letter request was forwarded to Hon. Milton Mollen, Presiding Justice, Appellate Division, Second Department.
In letters to Trager and Justice Stark on June 18, 1987 and June 23, 1987 respectively, Arnoff and District Attorney Patrick Henry voiced their objections to the June 16 allegations.
On July 20, 1987 Trager withdrew his request for Arnoff's disqualification.
Nevertheless, by short form order dated August 24, 1987, Justice Stark, sua sponte, revoked Arnoff's appointment stating:
* * *
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(emphasis added)
County Law Sec. 701 provides in relevant part:
"Whenever the district attorney of any county and his assistant, if he has one ... 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; * * * "
This statute provides transitory relief to a District Attorney (including his staff) who is disqualified for carrying out his duties as chief law enforcement officer of the county in which elected ( Holtzman v. Hellenbrand, 130 A.D.2d 749, 515 N.Y.S.2d 843; Matter of Board of Supervisors v. Aulisi, 62 A.D.2d 644, 406 N.Y.S.2d 570, aff'd. 46 N.Y.2d 731, 413 N.Y.S.2d 374, 385 N.E.2d 1302). "[A]s a general rule, [the Court] should remove a public prosecutor only to protect a defendant from actual prejudice arising from a demonstrated conflict of interest or a substantial risk of an abuse of confidence" ( Schumer v. Holtzman, 60 N.Y.2d 46, 55, 467 N.Y.S.2d 182, 454 N.E.2d 522.)
Here, the District Attorney and his staff were potential witnesses, as well as potential targets, of the grand jury to be convened. This is demonstrable cause for their disqualification. Arnoff's appointment was, therefore, proper under the circumstances. The same cannot be said for the revocation of that appointment.
Although the statutes are silent regarding disqualification of a special district attorney, there is no reason to apply a test different from that utilized to disqualify a district attorney, to wit, demonstrable conflict of interest or substantial risk of an abuse of confidence (cf. Schumer v. Holtzman, supra.) Neither is here present.
There is no showing that any conflict would have arisen had Arnoff prosecuted the case or that the public would lack confidence in Arnoff or that there is any risk that Arnoff would abuse that confidence.
The only concern was voiced by the Commission in the June 16 letter--the tenor of which is that the Commission wished to suggest the name of the special district attorney for the Court's approval. That they may have lacked confidence in Arnoff is not the test. It is whether the public lacks confidence. To hold otherwise would devolve upon the Commission powers to which it is not statutorily entitled.
Section 7502 of McKinney's Unconsolidated Laws () provides that the Commission shall have the power to conduct investigations into the conduct of public employees; to hold hearings; to make recommendations and prepare an annual report; and to refer evidence of crimes or misconduct "to the officials authorized to conduct the prosecution or to remove the public officer" (subd. 7). "It has no power to make findings determining guilt or innocence" ( People v. Mitchell, 40 A.D.2d 117, 121, 338 N.Y.S.2d 313.) It does not indict, present a case to the grand jury (cf. Matter of DiBrizzi, 303 N.Y. 206, 101 N.E. 464; Application of Carey, 68 A.D.2d 220, 416 N.Y.S.2d 904) or name or appoint a special district attorney (County Law Sec. 701). It may aid the district attorney in the performance of his official duties only when so requested (subd. 4). It is a conservative watchdog over abuses by public officials, hopefully insuring that power will not corrupt. However, the Commission's power is assuredly not absolute, for if there is fear of power corrupting there is even greater fear of absolute power corrupting absolutely. The Commission's temporary nature and the strict limitations placed on it by the Legislature evidence clear intent that it not be prosecutor, judge, jury and executioner. The 1980's will not countenance a Grand Inquisitor. The sole purpose of this temporary Commission's existence is to find facts to be subsequently acted upon by the appropriate prosecutorial entity (People v. Mitchell, supra.)
The power to prosecute is vested in the district attorney or a legally appointed special district attorney (McKinney's Const. Art. 13, Sec. 3; County Law Sec. 701).
However, in the instant case the Commission seems to have lost sight of its...
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People v. Gallagher
...JJ. MEMORANDUM BY THE COURT. Appeal by the People from so much of an order of the Supreme Court, Suffolk County (Rohl, J.), dated July 6, 1988, 531 N.Y.S.2d 970, as, upon the separate motions of the defendants to dismiss the indictment, declared the appointment of Special District Attorney ......