People v. Gentile, J-4

• Decision Date: 23 March 1992
• Docket Number: J-4
• Citation: 583 N.Y.S.2d 760,153 Misc.2d 986
• Parties: The PEOPLE of the State of New York v. Robert GENTILE, Defendant
• Court: New York Supreme Court

Page 760

583 N.Y.S.2d 760

153 Misc.2d 986

The PEOPLE of the State of New York v. Robert GENTILE, Defendant.

Supreme Court, Criminal Term Queens County, Part J-4.

March 23, 1992.

Chandler, Piliero & Towe, Martin A. Chandler, for defendant.

Richard A. Brown, Dist. Atty. by Neil F. Gitin, Asst. Dist. Atty., for the People.

DAVID GOLDSTEIN, Justice.

This is a motion to disqualify the District Attorney, pursuant to County Law § 701, as the result of an alleged conflict of interest by one of his employees, who is not an attorney, and for the appointment of a special prosecutor.

Defendant was indicted, inter alia, for attempted murder in the second degree and three counts of assault in the first degree, arising out of the beating of his grandfather with a hammer and a night stick, before and after he had pushed complainant down a flight of stairs and, after which, he dragged him down another flight, beat him again and took his wallet.

In moving for the appointment of a special prosecutor, defendant points to the fact that his mother, who is also the victim's daughter, is a secretary to one of the supervising assistants within the Queens County District Attorney's office, and that this could pose a conflict of interest, sufficient to permit the appointment of a special prosecutor.

Although not addressed in the papers submitted on the motion, the court has been advised that, after the motion was made but before the return date, defendant's mother interceded in an effort to convince her son to agree to disposition by a plea which would carry with it a sentence of imprisonment of 2 to 6 years. The physical condition of the grandfather is such that his approval cannot be secured. In any event, notwithstanding defendant's willingness to proceed along those lines, as a result of the severity of the victim's condition and the brutal nature of the attack, the District Attorney has refused to offer a plea which includes a term of imprisonment of less than 4 to 12 years.

The issue raised on this motion is whether sufficient cause has been shown, through the position and conduct of defendant's mother, to require the disqualification of the District Attorney and the appointment of a special prosecutor?

The statutory authority to supersede and replace a public prosecutor is contained in County Law § 701, which provides in part as follows:

1. Whenever the district attorney of any county and such assistants as he or she may have * * * are disqualified from acting in a particular case to discharge his or her duties at a term of any court, a superior criminal court in the county wherein the action is triable may, by order:

(a) appoint some attorney at law having an office in or residing in the county, or any adjoining county, to act as special district attorney during the absence, inability or disqualification of the district attorney and such assistants as he or she may have; or

(b) appoint a district attorney of any other county within the judicial department or of any county adjoining the county wherein the action is triable to act as special district attorney, provided such district attorney agrees to accept appointment by such criminal court during such absence, inability or disqualification of the district attorney and such assistants as he or she may have.

In terms of disqualification of a prosecutor, it is generally recognized that such relief will not be granted unless it is necessary to protect a defendant from actual prejudice arising from a conflict of interest or a substantial risk of an abuse of confidence. A mere appearance of impropriety, standing alone, is insufficient. The operative standard is set forth in Matter of Schumer v. Holtzman, 60 N.Y.2d 46, 55, 467 N.Y.S.2d 182, 454 N.E.2d 522 as follows:

* * * The courts, as a general rule, 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 (e.g., People v. Zimmer, 51 NY2d 390 [434 N.Y.S.2d 206, 414 N.E.2d 705], supra; People v. Shinkle, 51 NY2d 417, 421 [434 N.Y.S.2d 918, 415 N.E.2d 909] and the appearance of impropriety, standing alone, might not be grounds for disqualification. The objector should demonstrate actual prejudice or so substantial a risk thereof as could not be ignored.

In Schumer, supra, notwithstanding the personal and political differences between petitioner and the District Attorney, the Court of Appeals found disqualification to be inappropriate at that time since no actual prejudice was shown. As a result, it concluded that the application was premature since the District Attorney's concern that she might be accused of a personal vendetta vis-a-vis petitioner was insufficient to create a justiciable controversy.

People v. Zimmer, 51 N.Y.2d 390, 434 N.Y.S.2d 206, 414 N.E.2d 705, and People v. Shinkle, 51 N.Y.2d 417, 434 N.Y.S.2d 918, 415 N.E.2d 909, cited and relied upon in Schumer, supra, similarly hold that, before disqualification may be directed, there must be an actual conflict or a substantial risk of an abuse of confidence, not a mere appearance of impropriety. In Zimmer, supra, the District Attorney who presented the case to the Grand Jury was, at that time, counsel to and stockholder of a corporation which was managed by defendant when he committed the crimes at issue in that case, a clear conflict which the Court felt would undermine the air of impartiality that should surround judicial proceedings. InShinkle, supra, defendant was represented by an attorney who had been an Executive Director of the Legal Aid Society and was now Chief Assistant District Attorney for Sullivan County. That the same attorney had initially represented defendant, actively participating in his defense, and was now a Chief Assistant with the office which was prosecuting him on the very same charges, was a clear conflict, with a real danger of abuse of confidence. On this basis, the Court found that, notwithstanding the absence of tangible evidence of actual prejudice, the "inherent impropriety of the situation," the need to protect the public and the defendant and "the risk of prejudice attendant on abuse of confidence" warranted the appointment of a special prosecutor. Supra, at 421, 434 N.Y.S.2d 918, 415 N.E.2d 909.

People v. Keeton, 74 N.Y.2d 903, 549 N.Y.S.2d 647, 548 N.E.2d 1298, is the most recent expression of opinion by the Court of Appeals. The case involved simultaneous homicide and assault prosecutions by the same District Attorney against two sets of cross-complainants, each of whom claimed to be acting in self defense and accused the other of being the aggressor. Finding that there...