People v. Herr
| Decision Date | 18 June 1993 |
| Citation | 600 N.Y.S.2d 903,158 Misc.2d 306 |
| Parties | The PEOPLE of the State of New York v. Raymond HERR, Defendant. |
| Court | New York Supreme Court |
Kevin M. Dillon, Dist. Atty. of Erie County, Roger W. Wilcox, Jr., Asst. Dist. Atty., for the People.
William Elton Jemmott, Buffalo, for defendant.
The defendant has moved pursuant to Criminal Procedure Law Section 440.10 to vacate his judgment entered on September 8, 1992 on the grounds that it was obtained in violation of his right to counsel as guaranteed under the Federal and State Constitutions. The gravamen of defendant's contention is that, since his trial attorney was throughout the proceeding also the Village Prosecutor for the Village of Blasdell, his right to counsel was violated pursuant to People v. Shinkle, 51 N.Y.2d 417, 434 N.Y.S.2d 918, 415 N.E.2d 909, People v. Cooper, 156 Misc.2d 483, 593 N.Y.S.2d 733, and the New York State Bar Association Committee on Professional Ethics (N.Y.State 544 [1982].
The facts as alleged in the affidavits of Assistant District Attorney Roger W. Wilcox, Jr., and defendant's assigned attorney Daniel J. Henry, Jr., Esq., have been stipulated by defendant as being accurate, thereby avoiding the necessity of a factual hearing.
Defendant was indicted on August 16, 1991 for charges stemming from a sexual assault upon two minor females and culminating in his conviction on all counts, by jury verdict, and subsequent sentence on September 8, 1992 to an aggregate indeterminate period of incarceration of 52 2/3 to 148 years. Daniel J. Henry, Jr., Esq. was assigned to represent the defendant on this indictment, which included preparation and argument of omnibus motions, conducting hearings granted pursuant to same, as well as representing defendant at trial.
At all times during the prosecution of this indictment, Mr. Henry held the position of Village Prosecutor for the Village of Blasdell, having been appointed to same by the Village Board effective April 1, 1991 and terminated by the Board as of April 4, 1993. To comply with State Law, the appointment required that he be designated as a Village Prosecutor by the Erie County District Attorney (Village Law, Section 20-2006, County Law 700[1]). The designation, executed on April 1, 1991, limits Mr. Henry's authority "to the prosecution of all traffic violations, not including misdemeanors; also the prosecution of violations of the Village Ordinance, and the prosecution of violations of the Penal Law, which do not include felonies and misdemeanors" (People's Exhibit "B").
Other than the issuance of the aforesaid statutory designation, the District Attorney had no involvement, input, or review of the qualifications of the appointee, which are solely within the province and authority of the Village Board.
As Village Prosecutor, Mr. Henry was not an employee of the Erie County District Attorney as his salary, office, staff, and all other resources were supplied and furnished by the Village and not by the District Attorney. Additionally, Henry's position as Village Prosecutor was completely autonomous and independent of the District Attorney. He had no access to the District Attorney's files, investigative personnel, or other resources, nor did the District Attorney have access to Henry's files. The District Attorney did not supervise or influence Henry in the performance of his duties as Village Prosecutor, nor did Henry confer with or receive any advice or assistance from the District Attorney. Other than the pro forma designation, there was absolutely no connection or relationship between the Erie County District Attorney's Office and the Blasdell Village Prosecutor.
The District Attorneys throughout the state have determined that, due to the limited personnel and financial resources at their disposal, it would be impossible and impractical to undertake the prosecution of "violations" 1 occurring within the municipalities of the respective counties. The implementation, therefore, of the procedure delegating limited prosecutorial authority would fill this void and clearly insure the prosecution of these "violations" within said local municipalities.
It is noteworthy that this court found Mr. Henry's representation of defendant in this complex and demanding case to be outstanding and beyond reproach. No conflict, or any other impropriety, was apparent to this justice, who found Mr. Henry's representation of defendant to be manifested by nothing less than an uncompromising and unswerving dedication to his client. Furthermore, throughout this proceeding nothing was said or done by either Mr. Henry or Ms. Anne Adams, the prosecuting Assistant District Attorney, which provided this court with any indicia whatsoever that Mr. Henry was a village prosecutor, or that in representing their respective clients they were anything but zealous adversaries.
Defendant's argument is not complex. He succinctly contends that, although Mr. Henry may have provided the most competent, professional, and ethical representation possible, the mere fact that he was a village prosecutor with the authority to prosecute "violations" of State Law, even without any actual indicia of impropriety, created an appearance of impropriety necessitating vacation of his judgment. As authority, defendant cites People v. Shinkle, 51 N.Y.2d 417, 434 N.Y.S.2d 918, 415 N.E.2d 909, People v. Cooper, 156 Misc.2d 483, 593 N.Y.S.2d 733, and the New York State Bar Association Committee on Professional Ethics (NY State 544 [1982].
Shinkle involved a public defender who, after initially representing defendant and participating actively in the preparation of his defense, changed employment to become Chief Assistant District Attorney in the office then prosecuting defendant's case. The Court of Appeals held that, even though precautionary measures were taken to insulate the former public defender from any involvement with defendant's case, and although no actual prejudice was found, these facts "inescapably gave both defendant and the public the unmistakable appearance of impropriety and created the continuing opportunity for abuse of confidences entrusted to the attorney during the months of his active representation of defendant" (emphasis added) (Shinkle, 51 N.Y.2d at 420, 434 N.Y.S.2d 918, 415 N.E.2d 909).
The facts of Shinkle, defendant concedes, are readily distinguishable from the case at bar. In Shinkle, the former public defender discontinued the defendant's representation to join the office with the duty and responsibility to prosecute defendant. The switch of allegiances was not only apparent, but actual and complete. The former public defender was on the District Attorney's payroll and had complete access to the prosecutor's files and resources. Based upon such facts, the appearance of impropriety, with its attendant potential for abuse of client confidences, and the public perception of same, was too inescapable to be tolerated.
Defendant does not, however, rely solely on the specific facts and holding in Shinkle, but also on the supporting dictum. In explaining its holding, Shinkle stated that "defendant, and indeed the public at large, are entitled to protection against the appearance of impropriety and the risk of prejudice attendant on the abuse of confidence, however slight" and, further, that defendants have "the right to both the fact and appearance of unswerving and exclusive loyalty on the part of attorneys who represent them"(51 N.Y.2d at 421, 434 N.Y.S.2d 918, 415 N.E.2d 909). This dictum, defendant argues, establishes that the mere fact that Mr. Henry acted as a part-time village prosecutor with the authority to prosecute Penal Law "violations" created the appearance of impropriety prohibited by Shinkle.
To support the application of Shinkle to the facts of the case at bar, defendant cites the Erie County Court case of People v. Cooper, 156 Misc.2d 483, 593 N.Y.S.2d 733, and its reliance upon the New York State Bar Association Committee on Professional Ethics, Opinion 544 (N.Y.State 544 [1982]. The Cooper court held that the part-time town prosecutor's representation of defendant therein constituted an obvious and actual conflict of interest, thereby denying defendant his Constitutional "right to both the fact and appearance of unswerving and exclusive loyalty" (People v. Cooper, 156 Misc.2d at 484, 593 N.Y.S.2d at 736).
Cooper placed heavy reliance on the fact that the part-time prosecutor had the authority to prosecute Penal Law "violations" and, therefore, could not satisfy the first of five ethical criteria required by Ethics Opinion 544 before he could handle criminal defense matters without a conflict of interest or appearance of impropriety. Citing New York State Bar Association, Professional Ethics Committee, Opinion 564, Cooper concluded that the town prosecutor was thereby "forbidden to undertake a criminal defense case anywhere in the State of New York" (People v. Cooper, 156 Misc.2d at 487, 593 N.Y.S.2d at 735).
The defendant's attorney in Cooper was the town prosecutor in the town in which defendant was arrested and arraigned during the pendency of the Superior Court prosecution. Said attorney, in fact, interceded on behalf of the defendant and obtained defendant's release by the town judge. Additionally, the facts surrounding defendant's apprehension on the Town Court charges created an appearance that defendant's attorney was, intentionally or not, somehow involved.
This court concurs with Cooper's finding that, under those facts, an appearance of impropriety existed in violation of defendant's right to counsel as enunciated in Shinkle, but not, however, with its conclusion that a per se violation of Shinkle occurs whenever a part-time town or village prosecutor, with the authority to prosecute Penal Law "violations," undertakes a criminal defense case in New York...
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