People v. Vial

• Citation: 502 N.Y.S.2d 930,132 Misc.2d 5
• Parties: The PEOPLE of the State of New York v. James VIAL, Defendant. New York County, Part AP 5
• Decision Date: 12 May 1986
• Court: New York City Court

Page 930

502 N.Y.S.2d 930

132 Misc.2d 5

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

Criminal Court of the City of New York,

New York County, Part AP 5.

May 12, 1986.

James Levin, New York City, for defendant Vial.

Harvey A. Levine, P.C., New York City, for complainant James Jones (Peter Blessinger, of counsel).

Robert M. Morgenthau, Dist. Atty., New York County, for the People in the case of People v. James Jones (Jeffrey Zimmerman, of counsel).

MAX SAYAH, Judge.

May a Criminal Court Judge authorize and permit the attorney for a complaining witness to act as the prosecutor against a defendant charged with a criminal violation of a petty offense? In a case of apparent first impression, we hold that under the facts of this case the Court acts within its power when it authorizes the People of the State of New York to be represented by a private attorney.

The defendant James Vial is charged with the offense of harassment, in violation of Penal Law, Section 240.25. He has moved to dismiss the charge against him on two grounds contending: (a), that the Court is without power to appoint the attorney for the complainant as the acting prosecutor; and (b), that prosecution of the defendant is barred on the theory that he has been subjected to double jeopardy, in violation of Section 40.30 of the C.P.L. and of the Fifth Amendment of the Constitution of the United States of America.

BACKGROUND

On April 29, 1985, at about 8:15 p.m. in the ornate lobby of Carnegie Hall during a performance of the Chicago Symphony Orchestra, James Jones, the complaining witness in this case, acting as a security officer for Carnegie Hall, was called upon to escort the defendant James Vial from the Carnegie Hall premises. Mr. Jones, a veteran New York City Police Detective, was "moonlighting" as a security guard with Detective Jones was arrested and charged with assault (P.L. § 120.00[1] ) on the complaint of the defendant Vial. Jones thereupon requested a Judge of the Criminal Court, pursuant to the procedures of the Summons All Purpose Part, (SAP), to authorize the issuance of a Criminal Court information charging the defendant with the offense of harassment, in violation of Penal Law, § 240.25.

the permission and approval of his superiors at the New York City Police Department. According to Detective Jones, the defendant was yelling loudly, shouting obscenities and using foul and abusive language. When asked to leave, Mr. Vial drove his elbow into Jones' chest and spat in Jones' face. An altercation ensued during which the defendant James Vial sustained injuries to his nose. According to Mr. Vial he was struck and intentionally assaulted by James Jones. Jones, on the other hand, contends that Vial appeared to be under the influence of drugs or alcohol and fell while moving to strike him.

On September 30, 1985, the two Criminal Court informations, the one charging James Jones with assault and the other charging James Vial with harassment, were placed on the AP 5 calendar. When the proceeding against Vial was called, the Assistant District Attorney moved the Court to dismiss the charges against the defendant, urging that a conflict of interest existed on the part of the District Attorney. The Court, not having heard from the attorney for Jones, granted the People's request. Thus, only the single information against James Jones remained on the docket for prosecution.

On March 25, 1986, recognizing that the complainant/defendant James Jones would be severely prejudiced by the dismissal of his cross-complaint against the defendant/complainant James Vial, the Court authorized the filing of the instant information drawn against Vial, charging the offense of harassment as set forth by the facts of the original information.

The Office of the District Attorney was invited by the Court to institute alternative remedies which would dissipate the obvious conflict of interest generated by one Assistant District Attorney acting as prosecutor against both Mr. Vial and Mr. Jones. The Court suggested that two separate "Chinese Wall" assistants be assigned to prosecute the two informations, citing a procedure outlined by the Appellate Division, First Department, see In The Matter of Robert Morgenthau v. Stephen Crane and Frank Brenner, 113 A.D.2d 20, 495 N.Y.S.2d 164 (1985). Alternatively the Court noted the possibility that the District Attorney could recommend the appointment of a Special District Attorney by the Supreme Court. (County Law, Section 701). ¹ The District Attorney declined either of these invitations, thereby creating a void for the People in the instant prosecution against James Vial. ²

Accordingly, the Court directed James Vial to stand trial, authorizing Peter J. Blessinger, the attorney for James Jones, to act in the nature of the private prosecutor

who would present the People's case against Mr. Vial.

DISCUSSION

The defendant contends that the Court has acted beyond its power (he uses the term "ultra vires") by authorizing his prosecution. Hence, he urges the proceedings should be dismissed.

We note at the outset that for several decades the Criminal Court of New York has staffed a term of the Court known as the Summons All Purpose part (SAP). Through this part pass hundreds upon hundreds of New York citizens charged with a variety of petty offenses. ³ The offenses include traffic violations, "fare beats", sanitation violations, etc, all brought to Court by universal summonses issued by law enforcement personnel. In addition to universal summonses, Criminal Court Judges, under the authority of the New York City Criminal Court Act, Section 50, ⁴ routinely authorize summonses and informations in this SAP part, based upon the sworn allegations of private citizens who seek redress for criminal acts against them. Often these New York citizens have appeared at local police precincts to register complaints as victims of a crime but are told by the police to seek remedy before the SAP court. The offenses include harassment, assaults, sexual abuse, larceny and a host of other petty crimes.

The District Attorney, either by design, policy or monetary considerations, does not staff this SAP part. Hence, there is no representative of the People to prosecute the thousands of cases before the Court. It is well established that when the District Attorney is aware of a prosecution or a term of the Court in which prosecutions are ordinarily held and he chooses not to appear therein, he is held to acquiesce to prosecution by others. People v. Van Sickle, 13 N.Y.2d 61, 242 N.Y.S.2d 34, 192 N.E.2d 9; People v. Czajka, 11 N.Y.2d 253, 228 N.Y.S.2d 809, 183 N.E.2d 216; People v. DeLeyden, 10 N.Y.2d 293, 220 N.Y.S.2d 961, 177 N.E.2d 924; People v. Leombruno, 10 N.Y.2d 900, 223 N.Y.S.2d 516, 179 N.E.2d 517; People v. Schildhaus, 4 N.Y.2d 883, 174 N.Y.S.2d 465, 150 N.E.2d 768. Further by consenting to these Assistant-District-Attorney-unattended prosecutions, the District Attorney appears to relinquish his duty "to conduct all prosecutions for crimes and offenses cognizable by the courts of the county for which he has been elected." (County Law, Section 700.) Where the charge brought under the SAP procedures is a petty offense (CPL 1.20[39] ) and remains in the SAP part, the Court routinely takes guilty pleas, conducts hearings and trials, asks questions, permits complaining witnesses and attorneys to question those charged, and in effect, the entire proceeding, in this so called "People's Court," is generally one of private or court-conducted trial.

Where the docket which has originated in the SAP part charges a misdemeanor and cannot be resolved in this SAP part, the Court policy is to forward the proceedings to an All Purpose part (AP) for the assignment of an Assistant District Attorney. The District Attorney, for the first time, assumes his duty to conduct the prosecution under County Law Section 700. The Assistant District Attorney in the AP part investigates, moves the case to trial, or in many instances, moves the Court to dismiss when the evidence is insufficient to prove the charges beyond a reasonable doubt.

Without question, the District Attorney has the unfettered right and discretion to decide which cases and which crimes are It has been established that there exists in this case a conflict of interest on the part of the prosecution. Not only has the Assistant District Attorney conceded his conflict, but this Court finds that the same Assistant District Attorney may not prosecute two cross-complainant/defendants, each of whom is charged with an offense against the other. How much clearer is this demonstrable actual prejudice? A court should exercise its power of disqualification for the appearance of impropriety; (1), if an attorney's conflict of interest, in violation of Canons 5 and 9 ⁵ of the Code of Professional Responsibility, undermines the court's confidence in the vigor of the attorney's representation of his client; or (2), where the attorney is at least partially in a position to use privileged information concerning the other side through prior representation, thus giving his client an unfair advantage. Matter of Schumer v. Holtzman, 60 N.Y.2d 46, 55, 467 N.Y.S.2d 182, 454 N.E.2d 522.

prosecutable. This exercise of discretion may not be interfered with by the Court and remains solely within the province of the District Attorney. People v. Zimmer, 51 N.Y.2d 390, 394, 434 N.Y.S.2d 206, 414 N.E.2d 705; People v. Tassiello, 300 N.Y. 425, 427, 91 N.E.2d 872; Inmates of Attica Correctional Facility v. Rockefeller, 477 F.2d 375, 380 (2d Cir.1973). However, despite this unfettered right of the District Attorney, when the District Attorney is confronted with a clear conflict of interest, he may not, consistent with his duty to protect the public at large from any appearance of impropriety and risk of prejudice to a defendant, move to dismiss a pending case or take any action inconsistent with this...