People v. Nuzzi

• Decision Date: 21 May 1985
• Citation: 128 Misc.2d 502,489 N.Y.S.2d 836
• Parties: The PEOPLE of the State of New York v. James NUZZI, Defendant.
• Court: New York Supreme Court

Page 836

489 N.Y.S.2d 836

128 Misc.2d 502

The PEOPLE of the State of New York v. James NUZZI, Defendant.

Supreme Court, Trial Term New York County, Part 80.

May 21, 1985.

Robert M. Morgenthau, Dist. Atty., New York County, New York City, (Roslynn R. Mauskopf and Joseph P. Armao, New York City, of counsel), for the People.

Gerald T. McMahon, New York City, for defendant.

STEPHEN G. CRANE, Justice.

Defendant moves for the appointment of a special prosecutor pursuant to County Law § 701.

These are prosecutions for reckless driving (Vehicle and Traffic Law § 1190) and driving while having .10 of one percent or more of alcohol in the blood (Vehicle and Traffic Law § 1192 ). The defendant is a first cousin of one of the assistant district attorneys in this county. Originally, defendant moved in the Criminal Court, where these actions are pending, for the relief he seeks here. Because only a superior court is authorized to grant this application, Criminal Court (Gartenstein, J.) denied the motion on November 20, 1984. (People v. Anonymous, 126 Misc.2d 673, 481 N.Y.S.2d 987). Nevertheless, Criminal Court expressed in dictum its view that the application ought not be granted on the merits.

Procedural Implications

Since the prosecutions continue in the Criminal Court, and the cases are in this court only for the purpose of the application under County Law § 701, the question arises: Is this a special proceeding or a motion in pending litigation?

Upon the resolution of this question depends the nature of the order or judgment to be entered. If this is a special proceeding, to dispose of the application a judgment, not an order, must be entered. (CPLR 411.) This judgment would be appealable to the Appellate Division by the aggrieved party as of right. (CPLR 5701 If this is a motion in pending prosecutions, the disposition ends in an order. A denial of the motion would be reviewable on appeal to the Appellate Term from any judgment of conviction. (See e.g., People v. De Freese, 71 A.D.2d 689, 418 N.Y.S.2d 959.) The prosecutor could not appeal an order granting such an application. This is not one of the orders enumerated in CPL 450.20 that are appealable by the People. Consequently, an order granting the relief herein would be reviewable only by the prosecutor commencing an Article 78 proceeding in the Appellate Division. (CPLR 506 People v. Rediker, 97 A.D.2d 928, 470 N.Y.S.2d 734, citing 6 Zett, N.Y.Crim.Prac., par. 53.1 The legislature has not authorized a special proceeding to bring on an application to appoint a special prosecutor (see CPLR 103 In view of the express language in County Law § 701 specifying such an appointment "by order," the court concludes that the disposition of this application will result in an order in a criminal action. (See People v. Rediker, 97 A.D.2d 928, 929, 470 N.Y.S.2d 734.)

The Application

County Law § 701 provides:

"Whenever the district attorney of any county and his assistant, if he has one, shall not be in attendance at a term of any court of record, which he is by law required to attend, or is disqualified from acting in a particular case to discharge his duties at a term of any court, a superior criminal court in the county wherein the action is triable may, by order appoint some attorney at law having an office in or residing in the county ... to act as special district attorney during the absence, inability or disqualification of the district attorney and his assistant; but such appointment shall not be made for a period beyond the adjournment of the term at which made. Where, however, an appointment is required under this section for a particular case because of the disqualification of the district attorney, the appointment may be made for all purposes, including disposition. The special district attorney so appointed shall possess the powers and discharge the duties of the district attorney during the period for which he shall be appointed...."

The issue presented by this motion is whether the entire staff of the district attorney of New York County is disqualified, in the absence of a showing of prejudice, simply because one of the approximately 270 assistants, who is to be isolated from these prosecutions, is related within the fourth degree of consanguinity to the defendant (cf. Judiciary Law § 14).

The issue is unique ¹ because no defendant has taken it into his head to seek recusal of the prosecutor because of a blood relationship. Perhaps, such defendants believe they may have an advantage because of this relationship or, equally likely, prosecutors consent to recusal where a close family member is a defendant. ²

General Principles

In resolving the core issue it is helpful to limn the landscape of general principles on which this controversy is superimposed. The American Bar Association Standards relating to the Prosecution Function, § 3-1.2 prescribe that a prosecutor should avoid the appearance of a conflict of interest with respect to official duties. The commentary to this Standard states: "It is of the utmost importance that the prosecutor avoid participation in a case in circumstances where any implication of partiality may cast a shadow over the integrity of the office."

Furthermore, it has often been written that a prosecutor is a quasi-judicial officer. Matter of Schumer v. Holtzman, 60 N.Y.2d 46, 51, 467 N.Y.S.2d 182, 454 N.E.2d 522; People v. Fielding, 158 N.Y. 542, 547, 53 N.E. 497; People v. Kyser, 52 A.D.2d 1072, 384 N.Y.S.2d 332; People v. Causer, 43 A.D.2d 899, 351 N.Y.S.2d 236; People v. Lofton, 81 Misc.2d 572, 575, 366 N.Y.S.2d 769. Indeed, this judicial analogue has served as the basis, for example, of an ethical opinion respecting political activities of district attorneys and their assistants. (State Bar Ethics Opinion No. 568, N.Y.L.J., March 14, 1985, p. 4, col. 3, et seq.) It is noteworthy that a judge is disqualified where a party is within the sixth degree of consanguinity to the judge or the judge's spouse. (Judiciary Law § 14; 22 NYCRR § 100.3 ). It needs no judicial analogy to impose the rule that the appearance of impropriety must be avoided. (ABA, Code of Professional Responsibility Canon 9; ABA, Standards Relating to the Prosecution Function, § 3-1.2; Code of Judicial Conduct, Canon 2; 22 NYCRR § 100.2.)

Frequently generating the reported cases in this area is the claimed disqualification for apparent impropriety of an attorney in one firm, unconnected with the client's case, who affiliates with another firm representing the client's adversary. In this context the Court of Appeals has said:

"... is no answer that the lawyer did not in fact obtain any confidential information in connection with the first employment, or even that it was only other members of his firm who rendered the services to the client. Irrespective of any actual detriment, the first client is entitled to freedom from apprehension and to certainty that his interests will not be prejudiced in consequence of representation of the opposing litigant by the client's former attorney." (Cardinale v. Golinello, 43 N.Y.2d 288, 295-296, 401 N.Y.S.2d 191, 372 N.E.2d 26.)

See also, Greene v. Greene, 47 N.Y.2d 447, 418 N.Y.S.2d 379, 391 N.E.2d 1355. A presumption exists in such situations that information including client confidences is shared among attorneys in the same firm, and clients are entitled to be free from any anxiety that these will be shared with an adversary. (Hodes and Gabinet, "The Ethics of Disqualifying Attorneys for Strategic Reasons", N.Y.L.J., April 18, 1985, p. 1, col. 3, at p. 17, col. 2)

EFFECT OF FAMILY RELATIONSHIP

In the cases at bar, the district attorney has reassigned the prosecution to a trial bureau where defendant's cousin is not affiliated. The unrelated assistant in charge of these prosecutions is, assumedly, removed from any contact with the defendant's cousin. The People argue that these measures assure "that defendant will suffer no prejudice to his constitutional and statutory rights in the prosecution of this case." This stance borders on the cynical and in no way meets the genuine concerns that the district attorney must have to avoid impropriety or its appearance. On the contrary, the district attorney manifests sensitivity to the appearances in these cases by having taken steps to isolate defendant's cousin from any knowledge, contact or involvement in this prosecution.

Of course, these measures do not suffice if the blood relationship, per se, requires disqualification. This court concludes that a proximate blood relationship between a defendant and one of any number of assistant district attorneys--no matter how isolated this assistant may be from the defendant's case and regardless of any articulation of prejudice to the defendant--mandates disqualification of the prosecutor. The very relationship is inherently prejudicial. The defendant may never be assured that family intimacies and confidences or his own reputation among his relatives, which would never otherwise come to the attention of the police or the district attorney, will not somehow be used against him. For example, if defendant has a weakness for drink, it is well imaginable that this will be known among his close family members. Who is to say that such a fact in the hands of a skillful assistant district attorney would not improve the People's case against a defendant for driving while having more than a .10 of one percent of alcohol in the blood, or driving while intoxicated? (VTL § 1192 § 1196.) Indeed, regardless of these family considerations, the defendant is entitled to be free of any anxiety that he and his cases are being treated differently. And, the district attorney already admits that he is treating defendant in a special manner.

This may be perceived by some as a more lenient or favored treatment than defendants are usually accorded. The defendant may reasonably fear that because of his blood relationship the prosecutor will "lean...