People v. Limongelli
| Decision Date | 11 December 1989 |
| Citation | 548 N.Y.S.2d 759,156 A.D.2d 473 |
| Parties | The PEOPLE, etc., Respondent, v. Michael LIMONGELLI, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Axelrod, Cornachio & Famighetti, Mineola (Anthony W. Cornachio and Joseph Famighetti, of counsel), for appellant.
Denis Dillon, Dist. Atty., Mineola (Bruce E. Whitney, Lisa J. Becker and Matthew Sansverie, of counsel), for respondent.
Before THOMPSON, J.P., and BRACKEN, RUBIN and SPATT, JJ.
MEMORANDUM BY THE COURT.
Appeal by the defendant from a judgment of the County Court, Nassau County (Berke, J.), rendered January 29, 1988, convicting him of grand larceny in the first degree (seven counts), conspiracy in the fourth degree, and violation of Civil Service Law § 107, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
In January 1985 the Town of Hempstead commenced an investigation concerning complaints received by the Town from employees of its Department of Public Safety (hereinafter the DPS) alleging certain misconduct on the part of the defendant, Michael Limongelli, then Commissioner of the DPS. The Town referred the matter to the Nassau County District Attorney's Office and the defendant retained Anthony W. Cornachio to represent him. During the summer of 1985, while the District Attorney's office continued its criminal investigation, a civil trial was held in United States District Court for the Eastern District of New York in the case of Cullen v. Margiotta (see, 2 Cir., 811 F.2d 698). In the Federal proceedings some of the plaintiff's witnesses made allegations about Limongelli's conduct in office. Because of a perceived conflict in having the Town Attorney represent Limongelli (subpoenaed as a witness in that case), the Town Board, by resolution adopted August 20, 1985, appointed Cornachio as Special Counsel to the Town Attorney to represent Limongelli during his testimony at the civil trial. As Special Counsel, Cornachio arranged to have the DPS employees directed to his law offices during their duty shifts where he interviewed each, had them fill out and sign questionnaires and notarized their signatures. Those who did not sign answered questions orally as to the alleged misconduct. Cornachio had examined Town records with the aid of John Loeffel, the "records keeper" of the DPS. Cornachio's tenure as Special Counsel terminated at the close of the Federal trial. Limongelli did not testify at that trial.
In March 1986 the Grand Jury of Nassau County returned the instant indictment against Limongelli. On August 1, 1986, the prosecution moved to "recuse" or disqualify Cornachio as Limongelli's attorney, alleging a conflict of interest. After an evidentiary hearing, Judge Winick disqualified Cornachio as defense counsel "so as to assure this defendant a fair trial free of any conflict of interest". The order disqualifying Cornachio was vacated following Judge Winick's recusal and the case was referred to Judge Berke, who, upon reading the record, granted the People's motion and disqualified Cornachio and directed Limongelli to notify the court of the name and address of new counsel by May 1, 1987. A notice of appearance as defense counsel was entered by Cornachio's law partner, Joseph P. Famighetti, on April 27, 1987. A motion to disqualify Famighetti followed. By decision and order dated May 22, 1987, Judge Berke granted the People's motion and disqualified Famighetti "and any other member of the law firm of Axelrod, Cornachio & Famighetti".
On appeal, Limongelli contends that in disqualifying his first two choices of counsel, the court ignored the procedures prescribed by People v. Salcedo, 68 N.Y.2d 130, 506 N.Y.S.2d 154, 497 N.E.2d 292, and in doing so, violated his constitutional right to counsel of his own choice. We disagree. The right of an individual to an attorney of his choice, while not absolute (People v. Arroyave, 49 N.Y.2d 264, 425 N.Y.S.2d 282, 401 N.E.2d 393), is a right guaranteed by the State and Federal constitutions (United States v. Cunningham, 2 Cir., 672 F.2d 1064, 1071; Matter of Abrams [John Anonymous], 62 N.Y.2d 183, 196, 476 N.Y.S.2d 494, 465 N.E.2d 1). At the same time, a criminal defendant has the right to the effective assistance of counsel without compromise by a potential or actual conflict of interest. In the instant case, Cornachio's appointment by the Town Board as Special Counsel with regard to the Federal civil action, and his subsequent representation of...
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