People v. Nelson

• Decision Date: 26 October 1995
• Citation: 167 Misc.2d 665,647 N.Y.S.2d 438
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Lemrick NELSON, Jr., Defendant.
• Court: New York City Court

Page 438

647 N.Y.S.2d 438

167 Misc.2d 665

The PEOPLE of the State of New York, Plaintiff, v. Lemrick NELSON, Jr., Defendant.

Criminal Court of the City of New York Kings County, Jury Part Six.

Oct. 26, 1995.

Charles J. Hynes, District Attorney of Kings County (Gerald G. Allen, of counsel), for plaintiff.

Trevor L.F. Headley, Brooklyn, for defendant.

CHARLES J. HEFFERNAN, Jr., Justice.

This case presents a question of first impression: whether a district attorney whose office unsuccessfully prosecuted a defendant for murder, and who later actively petitioned the Attorney General of the United States for an investigation which resulted in federal charges against defendant for the same conduct which formed the basis of his state murder trial, should be disqualified from subsequently prosecuting that defendant for unrelated charges. For the reasons which follow, the question should be answered in the negative.

The Facts

Defendant stands charged with assault in the third degree (Penal Law Section 120.00[2] and related charges stemming from a street encounter between himself and a police officer on June 23, 1995 in Kings County. Through his counsel, defendant has moved for an order removing the Kings County District Attorney ("KCDA") from the instant prosecution and appointing a special district attorney pursuant to County Law Section 701. The People oppose the motion.

To place the motion in lucid context, it is necessary to briefly review defendant's controversy-beset involvement with the law in Kings County during the past four years. On August 19, 1991, Yankel Rosenbaum, 29, an Australian rabbinical student, was fatally stabbed in the Crown Heights section of Brooklyn during a riot that began three hours earlier when a 7-year-old black child was hit and killed by a car driven by an Hasidic man. Defendant was arrested on August 26, 1991, and later indicted for second degree murder pertaining to the death of Mr. Rosenbaum. On October 30, 1992, following a highly-publicized five-week trial in the Supreme Court in Kings County, defendant was acquitted of all charges. The verdict was met by vigorous, extended protest in some quarters, and was followed by two events implicated in the motion before this court. First, on November 17, 1992, the then-Governor of New York State issued an Executive Order directing a review of the criminal investigation and prosecution arising from the Rosenbaum murder. A report relating the findings of that review was later filed with the Governor. ¹ That report was, in part, critical of the prosecution of the murder case by the Office of the KCDA.

Second, during the period of public discontent with the acquittal, the KCDA, Charles J. Hynes, requested the Attorney General of the United States to authorize a federal grand jury investigation of the circumstances attending the Rosenbaum death. As a result of that investigation, on August 10, 1994, the United States Attorney for the Eastern District of New York filed a Juvenile Information charging defendant with an act of juvenile delinquency involving civil rights offenses against Mr. Rosenbaum, in violation of Title 18, United States Code, Sections 2 and 245(b)(2)(B). ² The charges before this court are independent of the federal prosecution.

The Positions of the Parties

Defendant's Argument:

In support of his motion seeking removal of the KCDA from the instant case, defendant advances the following principal arguments: (1) defendant's 1992 trial received extensive pre-trial publicity and was covered daily on television; (2) after defendant's acquittal at that trial "the [KCDA] through Charles Hynes together with the Lubavitcher Sect of the hasidic (sic) community and various and sundry politicians petitioned Attorney General Janet Reno to try Mr. Nelson on Civil Rights charges arising out of the death of Yankel Rosenbaum"; ³ (3) Mr. Hynes "who planned to, and did run for the office of Attorney General, has praised the Federal Government with respect to their ongoing prosecution of Mr. Nelson."; ⁴ (4) the KCDA has informed counsel that there will be no plea offer in this case, and "[t]raditionally these types and kinds of cases have been disposed of or have been adjourned in contemplation of dismissal"; ⁵ (5) the collective actions of the KCDA constitute over-zealous prosecution of the present case and demonstrate prejudice and abuse of the expected confidence that defendant will be fairly prosecuted.

The People's Argument:

The People first argue that County Law Section 701 confers authority to appoint a special district attorney only upon a superior criminal court. The People, however, also cite People v. Wyatt, 140 Misc.2d 69, 72-73, 530 N.Y.S.2d 460 (Crim.Ct.Bx.Co.1988) for the proposition that the Criminal Court does have authority to disqualify a district attorney.

Next, the People argue that notwithstanding the jurisdiction issue, appointment of a special district attorney would be unwarranted in this case, since defendant has failed to meet his burden to establish that there exists here either "actual prejudice arising from a demonstrated conflict of interest", or a "substantial risk of an abuse of confidence" (People v. Keeton, 74 N.Y.2d 903, 904, 549 N.Y.S.2d 647, 548 N.E.2d 1298 [1989]. The People deny that the KCDA harbors animosity against defendant because of the 1992 acquittal in the murder prosecution, and dispute defendant's contention that he is being unfairly prosecuted. Rather, the People contend that denial of a lesser plea offer in this case is simply a mark of vigorous prosecution not amounting to inappropriate exercise of the prosecutorial function. ⁶

The Legal Analysis

This motion engages two issues: first, whether this court has jurisdiction to grant the relief sought; second, whether defendant is entitled to that relief on the merits of this case.

The Jurisdiction Question: May the Criminal Court Disqualify a District Attorney?

Turning first to the jurisdiction issue, this court holds that although County Law Section 701 reserves to a superior criminal court the authority 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. Moreover, the existence of such jurisdiction flows from the plain-face meaning of that statute, as well as from decisional law.

Carefully read, County Law Section 701 is a two-tiered statute. The first tier is a series of conditions which implicate the second tier, by which a superior criminal court may appoint a special district attorney. The necessary predicates for that action include a situation in which a district attorney is "disqualified from acting in a particular case to discharge his or her duties at a term of any court." ⁷ (Emphasis supplied). Two points should be made in this regard. First, as noted above, the terms of the statute do not, either explicitly or by implication, divest a local criminal court of jurisdiction to consider a disqualification issue. Second, both judicial economy and good order would suggest that the issue be resolved by the local criminal court in a prosecution pending therein. The trial court, being most familiar with the facts of the individual case, would appear amply qualified to pass on such a motion. Additionally, its doing so would promote judicial economy. That is, should the disqualification motion be denied at the nisi prius court, the matter need go no farther in the normal course. Also, should the motion be granted by the lower court, the task of the superior criminal court would be the less onerous one of selecting the successor prosecutor. Thoughtful decisional law accords with such analysis. (People v. Cassidy, 118 Misc.2d 110, 112, n. 2, 459 N.Y.S.2d 957 [Crim.Ct., Kings Co.1983]. ⁸

The Merits: Should the KCDA Be Disqualified From This Prosecution?

Turning next to the merits of the disqualification motion, it is helpful to recall the "well-settled rule" that a district attorney is presumed to act impartially and therefore has full discretion to decide whom to prosecute. (People v. Claudio, 130 A.D.2d 759, 515 N.Y.S.2d 845 [2d Dept.1987]; People v. Fielding, 158 N.Y. 542, 53 N.E. 497, People v. Di Falco, 44 N.Y.2d 482, 486, 406 N.Y.S.2d 279, 377 N.E.2d 732). The Court of Appeals has adopted an increasingly stringent standard for disqualification of a district attorney. While People v. Zimmer, 51 N.Y.2d 390, 434 N.Y.S.2d 206, 414 N.E.2d 705 and People v. Shinkle, supra, decided less than one month apart in 1980, seemed to presage a not-difficult burden for a defendant seeking removal of a district attorney for an alleged conflict of interest, that interpretation was short-lived. ⁹

Three years later, the Court effected a virtual sea change in approach, when it decided Matter of Schumer v. Holtzman, supra. ¹⁰ The Court offered new, seemingly more restrictive guidance on disqualification of a district attorney, which remains the law on this issue: A court may intervene to disqualify an attorney only under limited circumstances. Particularly is this so in the case of a District Attorney who is a constitutional officer chosen by the electorate and whose removal by a court implicates separation of powers considerations ... 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 (e.g. People v. Zimmer, 51 NY2d 390 [434 N.Y.S.2d 206, 414 N.E.2d 705], supra; People v. Shinkle, 51 NY2d 417, 421 [434 N.Y.S.2d 918, 415 N.E.2d 909] and the appearance of impropriety, standing alone, might not be grounds for disqualification. The objector should demonstrate actual prejudice or so substantial a risk thereof as could not be ignored. Id. at 55, 467 N.Y.S.2d 182, 454 N.E.2d 522. ¹¹

It is thus helpful to examine the facts at...