People v. Zimmer

• Decision Date: 25 November 1980
• Citation: 434 N.Y.S.2d 206,414 N.E.2d 705,51 N.Y.2d 390
• Parties: , 414 N.E.2d 705 The PEOPLE of the State of New York, Respondent, v. Graeme ZIMMER, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 206

434 N.Y.S.2d 206

51 N.Y.2d 390, 414 N.E.2d 705

The PEOPLE of the State of New York, Respondent, v. Graeme ZIMMER, Appellant.

Court of Appeals of New York.

Nov. 25, 1980.

Richard T. Aulisi, Gloversville, for appellant.

William H. Intemann, Jr., Dist. Atty., for respondent.

OPINION OF THE COURT

FUCHSBERG, Judge.

On this appeal from an order upholding a conviction in a criminal case, ¹ we are called upon to decide, inter alia, whether the trial court should have denied a motion to dismiss the indictment when the District Attorney, at the time he presented the case to the Grand Jury, was also counsel to and a stockholder of the corporation in the course of whose management the defendant is alleged to have committed the "white collar" crimes with which he was charged. We believe the motion should have been granted.

The facts that govern our conclusion are neither complicated nor disputed. Defendant, Graeme Zimmer, organized and managed a business in rural Hamilton County which, while corporate in form, essentially was run as a one-man enterprise. The corporation bore his surname, being entitled Zimmer, Inc. For a long time, by what appears to have been at least silent acquiescence of the other investors, no reins were placed on his managerial conduct, or, if they were, they were not enforced. During his regime, no stockholders' meetings were ever held and when, midst a corporate financial crisis in the spring of 1977, he elected to surrender his corporate holdings and resign, it had been nearly 10 years since the directors had met. Soon after his departure, dissatisfied stockholders of this now teetering business took control of its affairs. By July of that year, among other steps they had taken was to retain the incumbent District Attorney of Hamilton County as the corporation's counsel. ² The District Attorney was also a stockholder of record. ³

Three months later, in October, 1977, the District Attorney, who at all times relevant to this prosecution continued to be corporate counsel and stockholder, personally procured a multicount indictment against the defendant and, in the following year, tried the case against him. All the counts in the indictment related to the defendant's dealings with or for the Zimmer corporation or its stockholders.

As his primary point, the defendant asserts that the District Attorney's involvement with the corporation disqualified him from representing the People at all stages of this matter and that, therefore, the denial of motions to dismiss the indictment, made both prior to and at the time of trial, was grievous error. Resisting the thrust of this contention, the position of the People in effect is that, absent demonstrative instances of "overzealousness, or overreaching attributable to the prosecutor's role", of which they insist there are none here, a "facial appearance of professional impropriety" would not constitute an impermissible imposition on defendant's entitlement to fundamental fairness.

Central to the issue so sharply drawn is the pivotal point at which a public prosecutor stands in the criminal justice system. Unlike other participants in the traditional common-law adversarial process, whose more singular function is to protect and advance the rights of one side, a District Attorney carries an additional and more sensitive burden. It is not enough for him to be intent on the prosecution of his case. Granted that his paramount obligation is to the public, he must never lose sight of the fact that a defendant, as an integral member of the body politic, is entitled to a full measure of fairness. Put another way, his mission is not so much to convict as it is to achieve a just result (Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314; People v. Petrucelli, 44 A.D.2d 58, 59, 353 N.Y.S.2d 194; Code of Professional Responsibility, EC 7-15).

These are more than noble sentiments. In large part to enable a public prosecutor to carry out his heavy responsibility in a fair and impartial manner, we and, increasingly other nations (see Goldstein & Marcus, Myth of Judicial Supervision in Three "Inquisitorial" Systems: France, Italy and Germany, 87 Yale L.J. 240), have come to grant the office wide latitude in the allocation of its resources. Not the least feature of this flexibility is a discretion to investigate, initiate, prosecute and discontinue broad enough, conceptually and practically, to merit the observation that, overall, more control over individuals' liberty and reputation may thus be vested than in perhaps any other public official (Ganger v. Peyton, 379 F.2d 709, 712 (4th Cir. 1967); Note, Prosecutor's Discretion, 103 U. of Pa.L.Rev. 1057; Freedman, Professional Responsibility of the Prosecuting Attorney, 55 Georgetown L.Rev. 1030, 1037).

For example, almost invariably it is the prosecutor who decides whether a case is to be pressed or dropped and what the nature of the specific offense or offenses to be lodged against a defendant is to be. ⁴ As a vital partner in the plea bargaining process or via his sentencing input (e. g., Penal Law, § 65.00), he heavily influences the sanction meted out. (See, generally, Report of the President's Comm. on Law Enforcement and the Administration of Justice, The Challenge of Crime In a Free Society, 11, 12, 134-135; ABA Project on Standards for Criminal Justice, The Prosecution Function and the Defense Function (Approved Draft, 1971), p. 7.) Of especial pertinence to the case before us now is "the crucial nature of the prosecutor's role vis-a-vis the Grand Jury" (People v. Di Falco, 44 N.Y.2d 482, 485, 406 N.Y.S.2d 279, 377 N.E.2d 732).

It would be simplistic therefore to think of the impact of a prosecutor's conflict of interest merely in terms of explicit instances of abuse. Even our thumbnail description of prosecutorial power is enough to indicate that resulting prejudice can at least as easily flow from an act of omission as from one of commission, from discretion withheld as from discretion exercised. In...