People v. Marrano
Decision Date | 08 May 2023 |
Docket Number | Docket No. CR-0332-23 |
Citation | 2023 NY Slip Op 50420 (U) |
Parties | People of the State of New York v. Daniel V. Marrano, Defendant |
Court | New York City Court |
Unpublished Opinion
Hon Jason M. Carusone, Warren County District Attorney, Ryan Christensen, Esq., Assistant District Attorney
Gregory V. Canale, Esq., Warren County Public Defender Jeffrey L. Ferguson, Esq., and Justin Wodicka Assistant Public Defenders
On June 9, 2022, the defendant was charged with the crimes of Aggravated Harassment in the Second Degree [Penal Law § 240.30(2)] and Criminal Impersonation in the Second Degree [Penal Law § 190.25(3)], which charges were filed in the Town Court, Town of Queensbury.
On or about July 22, 2022, under this Court's Docket No CR-1424-22, the defendant was charged with two (2) counts of Harassment in the Second Degree [Penal Law § 240.26(3)] concerning alleged harassing letters sent to homes of Assistant District Attorneys Avi Goldstein, Connor Smith, and Morgan Cosentino. The Warren County District Attorney's Office sought and obtained a Special Prosecutor, Washington County District Attorney Anthony Jordan, to prosecute the Harassment Second Degree charges. On January 17, 2023, the charges of Harassment in the Second Degree were resolved by a plea bargain with the Defendant receiving an Adjournment in Contemplation of Dismissal with a six-month full no-contact order of protection in favor of ADAs Goldstein, Smith, and Cosentino. The defendant's ACOD and Order of Protection will expire on July 17, 2023.
There is no dispute that the Defendant's original charges of Aggravated Harassment in the Second Degree [Penal Law § 240.30(2)] and Criminal Impersonation in the Second Degree [Penal Law § 190.25(3)] are unrelated to the offenses of Harassment in the Second Degree [Penal Law § 240.26(3)] in that no employee of the District Attorney's Office was an alleged victim or would be a witness in the June 9, 2022 Aggravated Harassment in the Second Degree or Criminal Impersonation case. According to the pleadings and supporting depositions regarding the Harassment Second Degree case, none of the named Assistant District Attorneys know or knew the defendant when they received letters at their respective homes.
On February 15, 2023, the defendant moved the Queensbury Town Court for an order seeking disqualification of the Warren County District Attorney's Office from prosecuting the defendant on these charges alleging that certain Assistant District Attorneys have a conflict of interest.
On March 10, 2023, Hon. Michael Muller issue a written decision and order finding that, pursuant to County Law § 701 and 22 N.Y.C.R.R. § 200.15, the Warren County District Attorney's Office was disqualified from prosecuting the above-named defendant on the pending charges on the grounds that the "risk of an appearance of impropriety and risk of prejudice (to the defendant) cannot be ignored." [March 10, 2023, Decision and Order]. On March 15, 2023, the justices of the Queensbury Town Court recused themselves from presiding over these charges and the matter was subsequently transferred to this Court.
On March 27, 2023, the People moved this Court, pursuant to CPLR § 2221(d), to be allowed to reargue their opposition to the defendant's original motion seeking disqualification of the District Attorney's Office indicating that the Queensbury Town Court failed to consider the District Attorney's assertion that disqualification of the District Attorney's Office under these facts would incentivize defendants to commit offenses against prosecutors and then claim that the prosecutor has a conflict of interest.On or about March 30, 2023, the case file was received by this Court, and this Court granted leave to reargue. By Decision and Order dated April 19, 2023, this Court granted the District Attorney's Office request to reargue. On April 28, 2023, this Court heard oral arguments from the parties. The Defendant asserts that the Harassment Second Degree charges, which involved three (3) Assistant District Attorneys as alleged victims requires disqualification of the entire District Attorney's Office from prosecuting the defendant in the present case as the Harassment 2d Degree charges created an actual conflict of interest or a substantial risk of an abuse of confidence in prosecution of the present case. The Defendant asserts that the Court of Appeals decision in People v. Zimmer, 51 N.Y.2d 390, 434 N.Y.S.2d 206, 414 N.E.2d 705 (1980) is applicable in the present case and mandates disqualification. The People assert that there is no actual conflict of interest or a substantial risk of an abuse of confidence in prosecution of the present case since the Harassment 2d charges did not involve the District Attorney or Assistant District Attorneys involved in the prosecution of the present case. In addition, the People assert that granting the defendant's request for disqualification would encourage defendants to avoid prosecution by merely mailing harassing letters to Assistant District Attorneys and/or to any assigned Special Prosecutor. The defendant could then forum shop for a favorable prosecutor and avoid prosecution by creating an alleged conflict of interest with any member of the District Attorney's Office and every assigned Special Prosecutor. The People also assert that the facts of the present case are entirely different than the factual basis for the holding in People v. Zimmer, 51 N.Y.2d 390, 434 N.Y.S.2d 206, 414 N.E.2d 705 (1980) and, as a result, the holding in Zimmer is not applicable to the present case.
In this case, there is no assertion that the District Attorney or Assistants assigned to the present case were alleged victims of harassment by the defendant. There is no assertion that any member of the District Attorney's Office will be a witness in the present case or that any other witnesses or evidence from the Harassment 2d charges will be used to prosecute the defendant in the present case. The defendant has failed to assert or prove that the Assistant District Attorneys handling the charges of Aggravated Harassment and Criminal Impersonation are engaged some biased, unfair, prejudicial, or improper conduct because of the defendant's resolved Harassment 2d Degree case.
Although County Law § 701 grants authority to a superior court to appoint a special district attorney, the statute neither states nor suggests that a local criminal court lacks jurisdiction to determine whether a district attorney should be disqualified from prosecuting a case. See, County Law § 701; People v Nelson, 167 Misc.2d 665 668 [City Court, City of New York, 1995]. Thus, a local criminal court has the inherent authority to, under the proper circumstances, disqualify the District Attorney's Office from prosecuting a particular defendant and refer the case to the Superior Court for appointment of a special prosecutor. See, People v Nelson, 167 Misc.2d 665, 668 [City Court, City of New York, 1995]; People v Wyatt, 140 Misc.2d 69, 73 [City Ct, Bronx County, 1988]; 1 Criminal Procedure in New York, Jurisdiction - Local criminal courts § 1:9 (2d); Handling a Criminal Case in New York, Prosecutor: the district attorney - Special prosecutor § 1:12 ( ).
A court may not lightly undertake to disqualify a district attorney, since "a constitutional officer chosen by the electorate and whose removal by a court implicates separation of powers considerations." People v Jaquish, 18 Misc.3d 302, 304 [Essex County Ct 2007], quoting, People v. Nelson, 167 Misc.2d 665, 647 N.Y.S.2d 438; see also, People v. Zimmer, 51 N.Y.2d 390, 434 N.Y.S.2d 206, 414 N.E.2d 705; People v. Shinkle, 51 N.Y.2d 417, 434 N.Y.S.2d 918, 415 N.E.2d 909).
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. People v Jaquish, 18 Misc.3d 302, 304 [Essex County Ct 2007], citing, People v. Zimmer, 51 N.Y.2d 390, 434 N.Y.S.2d 206, 414 N.E.2d 705; People v. Shinkle, 51 N.Y.2d 417, 421, 434 N.Y.S.2d 918, 415 N.E.2d 909; Schumer v. Holtzman, 60 N.Y.2d 46, 55, 467 N.Y.S.2d 182, 186, 454 N.E.2d 522, 526; People v Nelson, 167 Misc.2d 665, 672 [Crim Ct., Kings County, 1995]. The phrase, "a substantial risk of an abuse of confidence," refers to the "opportunity for abuse of confidences entrusted to an attorney. People v Fountain, 55 Misc.3d 211, 217-18 [Rensselaer County Ct 2016], citing, People v. Shinkle, 51 N.Y.2d 417, 420, 434 N.Y.S.2d 918, 415 N.E.2d 909. Thus, a defendant seeking disqualification of a District Attorney and appointment of a special prosecutor must "demonstrate actual prejudice or so substantial a risk thereof as could not be ignored." People v Fountain, 55 Misc.3d 211, 217-18 [Rensselaer County Ct 2016], quoting, Matter of Schumer v. Holtzman, 60 N.Y.2d 46, 56, 467 N.Y.S.2d 182, 454 N.E.2d 522 [1983].
The court's authority to disqualify a District Attorney should be exercised sparingly. See, In the Matter of Working Families Party v. Fisher, 23 N.Y.3d 539, 992 N.Y.S.2d 172, 15 N.E.3d 1181 (2014); In re Soares v Herrick, 20 N.Y.3d 139, 957 N.Y.S.2d 664, 981 N.E.2d 260 (2012); People v Fountain, 55 Misc.3d 211, 217-18 [Rensselaer County Ct 2016]. The burden is on the defendant to show actual prejudice. People v. Johnson, 20 A.D.3d 808, 799 N.Y.S.2d 276 (3d Dept.2003). Generally, an inference of impropriety will not, by itself, be sufficient to grant the relief. People v. Vanderpool, 217 A.D.2d 716, 629 N.Y.S.2d 307 (3d Dept.1995); People v Fountain, 55 Misc.3d 211, 217-18 [Rensselaer County Ct 2016]. Thus, court...
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