People v. Jackson

• Citation: 548 N.Y.S.2d 987,145 Misc.2d 1020
• Parties: PEOPLE of the State of New York v. Severn JACKSON.
• Decision Date: 06 December 1989
• Court: United States State Supreme Court (New York)

Page 987

548 N.Y.S.2d 987

145 Misc.2d 1020

PEOPLE of the State of New York v. Severn JACKSON.

Supreme Court, Kings County,

IAS Part 33.

Dec. 6, 1989.

Severn Jackson, pro se.

Elizabeth Holtzman, Dist. Atty., (Nancy A. Stareeff, Asst. Dist. Atty., of counsel), for the People.

GERALD J. BELDOCK, Justice.

Should a conviction obtained as a result of and during the commission of a crime by the prosecutor be vacated? Phrased differently, must a jury verdict be set aside because a prosecutor was never admitted to the practice of law in the State of New York?

On December 18, 1987, an indictment was filed charging defendant with Robbery in the First and Second Degrees and various related offenses. On August 31, 1988 pretrial hearing was commenced, and on September 7, 1988 all suppression motions were denied. Jury selection commenced on September 8, 1988 and on September 23, 1988 defendant was convicted of Robbery in the Second Degree and Criminal Possession of a Weapon in the Fourth Degree. On October 14, 1988 defendant moved to set aside the verdict. This was opposed by the People by affirmation. The People also submitted a second felony statement. Both the second felony statement and the affirmation in opposition were signed by Assistant District Attorney Daniel Panofsky. In the affirmation in opposition ADA Daniel Panofsky, stated that he was "an attorney duly licensed to practice law in the courts of the State of New York ..." (p 1, affirmation dated October 20, 1988). ADA Panofsky conducted the suppression hearing, and the trial of defendant.

It has now been learned that ADA Panofsky has never been admitted to practice law in the State of New York. Defendant moves to vacate his conviction on this ground (CPL 440.10).

The District Attorney's Office concedes that Mr. Panofsky has never been licensed or authorized to practice law in the State of New York. It is alleged that Mr. Panofsky graduated from an accredited law school (presumably Boston University) in 1973. There is no allegation that Mr. Panofsky was admitted in any other state (Dotson v. State [Wyo.], 712 P.2d 365, 366-367--differentiating between prosecutors never admitted to practice law and those admitted in other states; see also, People v. Felder 47 N.Y.2d 287, 294, n. 6, 418 N.Y.S.2d 295, 391 N.E.2d 1274). Mr. Panofsky has been an Assistant District Attorney for over 13 years. It is conceded that Mr. Panofsky's actions constitute a violation of Judiciary Law 484, a class A misdemeanor.

Initially, the court must determine if an assistant district attorney or a district attorney must be licensed to practice law in order to hold that office. If a district attorney or an assistant district attorney need not be a licensed counsellor at law, then the conviction must be upheld (State v. Swan, 60 Kan. 461, 56 P. 750).

Neither the New York State Constitution (art. XIII, § 13) nor any statute (County Law §§ 700, 926, 927, 930) requires that a prosecutor be an attorney at law. The majority of states where there exists no explicit constitutional or statutory provision requiring that a prosecutor be admitted to practice law, hold that admission to the bar is a prerequisite to the holding of the office of prosecutor (People ex rel. Elliott v. Benefiel, 405 Ill. 500, 91 N.E.2d 427; People ex rel Hughes v. May, 3 Mich. 598; Danforth v. Egan, 23 S.D. 43, 119 N.W. 1021, 1024; State of Indiana ex rel State Bar Assn v. Moritz, 244 Ind. 156, 191 N.E.2d 21; In re Opinion of Justices, 240 Mass. 611, 135 N.E. 305; State ex rel Summerfield v. Maxwell, 148 W.Va. 535, 135 S.E.2d 741; New Hampshire Bar Assn v. LaBelle, 109 N.H. 184, 246 A.2d 826; State v. Henry, 196 La. 217, 198 So. 910, 913-914; cf., equally divided court in People ex rel Baxter v. Hallett, 1 Colo. 352). Two rationales appear throughout these cases. The first is that the title of the office implies requirement of an admission to the bar. The word "attorney" in the titles "district attorney", "state's attorney", "county attorney", "attorney general", is an indicia that the office holder be admitted to practice law.

The second reason is that the duties of the prosecutor's office require that the officeholder charge a grand jury, conduct trials, appear in court, and conduct other legal actions. These duties can only be performed by a duly licensed counsellor at law. The courts thus hold that the prosecutor must be an attorney, otherwise he would be unable to perform the duties of his office.

A minority of courts hold that a prosecutor need not be admitted to the practice of law (People v. Dorsey, 32 Cal. 296; State ex rel Kinsella v. Eberhart, 116 Minn. 313, 133 N.W. 857; State v. Swan, 60 Kan. 461, 56 P. 750, supra ). These courts hold, absent explicit language in the constitution or statute, that a court is not authorized to create requirements for the holding of public offices which are not explicitly in the constitution or statute. The courts feel that the electors or the appointing officer's right to elect or appoint an individual to a public office cannot be abrogated by judicial fiat. Further, the courts hold that since a district attorney does not need a law license, he may practice law in his capacity as prosecutor (State v. Swan, supra ).

Two early New York nisi prius courts have adopted the reasoning of the majority (Matter of Sposato, 180 Misc. 933, 43 N.Y.S.2d 426; Matter of Sposato, 180 Misc. 940, 43 N.Y.S.2d 785). This court finds that the reasoning of the majority of courts to be correct.

The court holds that an assistant district attorney or the district attorney must be licensed to practice law in order to qualify for the public office of prosecutor.

The fact that a public officer who is duly elected or appointed, does not have the qualifications for the office does not mean that the acts done by such individual during such person's tenure are null and void. Generally, acts of public officers who are not qualified for their offices are binding on third parties (see, 48 NY Jur, Public Officers and Employees, §§ 296-304; 63A Am Jur 2d, Public Officers and Employees, §§ 578-608; 27 C.J.S., District and Prosecuting Attorneys, §§ 9, 28[1][c]. These unqualified officers are deemed de facto officers. This concept has been applied to prosecutors who are not qualified to act as such (People v. Williams, 139 A.D.2d 138, 143, 531 N.Y.S.2d 371, revd. on other grounds 73 N.Y.2d 84, 538 N.Y.S.2d 222, 535 N.E.2d 275; concurring opinion Hardin, J., People v. Lytle, 7 App.Div. 553, 564-568, 40 N.Y.S. 153; People v. Fuller, 156 Misc. 404, 413, 434, 282 N.Y.S. 28; Dotson v. State [Wyo.], 712 P.2d 365, supra; Glavino v. People, 75 Colo. 94, 224 P. 225; Pamanet v. State, 49 Wis.2d 501, 182 N.W.2d 459; Petition of Dusablon, 126 Vt. 362, 230 A.2d 797; Gasper v. District Ct., 74 Idaho 388, 264 P.2d 679; People v. Kempley, 205 Cal. 441, 271 P. 478). The acts of a de facto prosecutor may not be collaterally attacked in order to vacate a conviction ( State v. Cook, 84 Wash.2d 342, 525 P.2d 761, 766; State v. Bell, 84 Idaho 153, 370 P.2d 508; People v. Davis, 86 Mich.App. 514, 272 N.W.2d 707; see also, Matter of Schumer v. Holtzman, 60 N.Y.2d 46, 467 N.Y.S.2d 182, 454 N.E.2d 522).

In this case, the appointment of Mr. Panofsky as an assistant district attorney was regular in all respects, except that he was not qualified to hold that office. Mr. Panofsky must be deemed a de facto assistant district attorney. Although a de facto assistant district attorney, his office did not authorize him to practice law without a license (People ex rel. Elliott v. Benefiel, 405 Ill. 500, 91 N.E.2d 427, 429, supra ). The act of trying a case was not authorized by the office he held. Thus, he acted ultra vires. Unauthorized acts of public officers are subject to attack by any party who is affected by such illegal conduct. The defendant may attack the illegal practice of law by Mr. Panofsky since he was affected by the unauthorized actions.

The district attorney, relying on Dunn v. Eickhoff, 35 N.Y.2d 698, 361 N.Y.S.2d 348, 319 N.E.2d 709 and In re Estate of Lackas, 65 A.D.2d 800, 410 N.Y.S.2d 307, claims that notwithstanding the prosecutor's lack of a license, the conviction is valid.

In Dunn v. Eickhoff, 35 N.Y.2d 698, 361 N.Y.S.2d 348, 319 N.E.2d 709, supra, a civil infant plaintiff was represented by a disbarred attorney. The court held that plaintiff was bound by the acts of the disbarred attorney. The instant matter is distinguishable in two significant ways. First, the attorney in Dunn was a disbarred attorney who at one time had been admitted to practice law. Counsel had the legal training and knowledge of an attorney but due to some conduct was disbarred. As pointed out in People v. Chin Min Foo, 144 Misc.2d 589, 545 N.Y.S.2d 55, 57, there is a long line of cases which differentiate between acts of a disbarred attorney and acts of a person who has never been admitted to the practice of law. Further, the Court of Appeals has rejected the use of Dunn in criminal cases (People v. Felder, 47 N.Y.2d 287, 294, n. 6, 418 N.Y.S.2d 295, 391 N.E.2d 1274, supra ). There are significant differences between civil and criminal cases so that the rules applicable to civil cases are not applicable to criminal cases (see, e.g., People v. Plevy, 52 N.Y.2d 58, 64, 436 N.Y.S.2d 224, 417 N.E.2d 518; People v. Berkowitz, 50 N.Y.2d 333, 344-345, 428 N.Y.S.2d 927, 406 N.E.2d 783; People v. Fielding, 158 N.Y. 542, 547, 53 N.E. 497). Dunn is not applicable to this case.

Because of the distinctions between civil and criminal cases, the case of In re Estate of Lackas, 65 A.D.2d 800, 410 N.Y.S.2d 307, supra is also inapplicable. Further, the viability of that case is questionable. The majority in that case cited the Appellate Division in People v. Felder, 61 A.D.2d 309, 402 N.Y.S.2d 411 as supporting their holding, and the concurring opinion felt itself bound by the Appellate Division Felder opinion. After the Lackas decision, the...