People v. Herr

• Decision Date: 30 November 1995
• Citation: 658 N.E.2d 1032,635 N.Y.S.2d 159,86 N.Y.2d 638
• Parties: , 658 N.E.2d 1032 The PEOPLE of the State of New York, Respondent, v. Raymond HERR, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 159

635 N.Y.S.2d 159

86 N.Y.2d 638, 658 N.E.2d 1032

The PEOPLE of the State of New York, Respondent, v. Raymond HERR, Appellant.

Court of Appeals of New York.

Nov. 30, 1995.

[86 N.Y.2d 639] David C. Schopp, Linda S. Reynolds and Barbara J. Davies, Buffalo, for appellant.

[86 N.Y.2d 640] Kevin M. Dillon, District Attorney of Erie County, Buffalo (J. Michael Marion and John J. DeFranks, of counsel), for respondent.

OPINION OF THE COURT

LEVINE, Judge.

The Erie County District Attorney's office prosecuted defendant for various sex offenses. Defendant was represented by Daniel J. Henry, Jr., who was a part-time Village Prosecutor for the Village of Blasdell. Henry was appointed Village Prosecutor by the Village Board and designated as such by the Erie County District Attorney. The designation limited Henry's authority to the prosecution of all traffic violations except misdemeanors, violations of the Village ordinance, and violations under the Penal Law that did not include felonies and misdemeanors. As Village Prosecutor, Henry was not an employee of the Erie County District Attorney's office. His salary, office and staff were all supplied by the Village and not the District Attorney's office. Henry had no access to the District Attorney's files, investigative personnel or other resources. The District Attorney likewise had no access to Henry's files, investigative personnel or other resources. Moreover, Henry was not empowered to prosecute the crimes with which defendant was charged and tried.

Despite representation characterized by the trial court as "outstanding and beyond reproach," (158 Misc.2d 306, 308, 600 N.Y.S.2d 903) defendant was convicted on all counts. Subsequently, defendant moved pursuant to CPL 440.10 to vacate his judgment of conviction on several grounds including that it was obtained in violation of his right to counsel as guaranteed under the Federal and State Constitutions. Defendant maintains here, as he did below, that his attorney's role as a part-time Village Prosecutor created an unacceptable appearance of impropriety thus compromising his right to effective assistance of counsel. Specifically, he points to our language from People v. Shinkle, 51 N.Y.2d 417, 434 N.Y.S.2d 918, 415 N.E.2d 909 that criminal defendants have "the right to both the fact and appearance of unswerving and exclusive loyalty on the part of attorneys who represent them"(id., at 421, 434 N.Y.S.2d 918, 415 N.E.2d 909). Defendant's arguments were rejected by both Supreme Court and the Appellate Division, and we now affirm.

In Shinkle we held that a criminal defendant's right to counsel was violated when a Public Defender, who actively participated in the preliminary stages of a defendant's defense, became employed as Chief Assistant District Attorney by the office that was prosecuting that defendant's ongoing case. Although the District Attorney's office had taken all available precautions to insulate the attorney from the defendant's case, we concluded that the office should have been disqualified because the facts "inescapably gave both defendant and the public the unmistakable appearance of impropriety and continuing opportunity for abuse of confidences entrusted to the attorney during the months of active representation of defendant" (id., at 420, 434 N.Y.S.2d 918, 415 N.E.2d 909). Thus, the rule of Shinkle is that disqualification is required when there is a "risk of prejudice attendant on the abuse of confidence" (id., at 421, 434 N.Y.S.2d 918, 415 N.E.2d 909). The rule is necessary to prevent situations in which former clients must depend on the good faith of their former lawyers turned adversaries to protect and honor confidences shared during the now extinct relationship. In those situations the risk of abuse is obvious. We have explained, however, that Shinkle does not require disqualification whenever there exists a possible appearance problem: "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 * * * and the appearance of impropriety, standing alone, might not...