Wilcox v. Dwyer
| Decision Date | 24 January 1980 |
| Citation | 423 N.Y.S.2d 964,73 A.D.2d 1016 |
| Parties | In the Matter of Charles J. WILCOX, as District Attorney of Rensselaer County, Petitioner, v. M. Andrew DWYER, Jr., as Judge of the County Court of Rensselaer County, et al., Respondents, and Raymond A. Kelly, Jr., Intervenor. |
| Court | New York Supreme Court — Appellate Division |
Charles J. Wilcox, Rensselaer County Dist. Atty., Troy, pro se.
Robert Abrams, Atty. Gen. (Peter J. Dooley, Jr., Asst. Atty. Gen., of counsel), for respondent, Dwyer.
Robert P. Roche, Albany, for intervenor.
Before KANE, J. P., and STALEY, MAIN, MIKOLL and CASEY, JJ.
Proceeding pursuant to CPLR article 78 () to prohibit implementation of an order of a Judge of the County Court of Rensselaer County.
This is an article 78 proceeding in which the Rensselaer County District Attorney, Charles J. Wilcox, seeks a judgment in the nature of prohibition to restrain enforcement of an order issued on December 21, 1979 by the respondent, Rensselaer County Court Judge, M. Andrew Dwyer, Jr. Among other items, the challenged order partially disqualifies petitioner Wilcox and appoints respondent, E. Stewart Jones, Jr., a Special District Attorney of Rensselaer County (County Law, § 701) for the limited purpose of questioning one Becky Ann Redcross as a witness before a Rensselaer County Grand Jury. It also appoints Thomas V. Kenney, Jr., to represent Redcross in connection with her appearance before that body, thereby replacing her own attorney, Raymond A. Kelly, Jr. Petitioner does not attack the validity of that portion of the order, but Kelly has moved to intervene in this proceeding and urges that the order be upheld in its entirety or, if the appointment of Jones is vacated, that it be completely vacated. In our opinion, since Kelly obviously has an interest in this proceeding, his motion to intervene should be granted (CPLR 7802, subd. (d)).
From the papers submitted, it appears that the present controversy is an outgrowth of an investigation into the homicide of one Donald Hansen. The inquiry resulted in an indictment which was subsequently dismissed, on petitioner's motion, because a witness before the Grand Jury had recanted certain testimony. However, petitioner resubmitted the same matter to another Grand Jury and Redcross was served with a subpoena to testify at that proceeding. When Kelly moved on her behalf to quash the subpoena as untimely, the arguments presented to respondent Dwyer revealed that she possessed relevant information concerning the homicide; was not a target of the investigation; had testified in the earlier proceeding; and would receive immunity for her testimony before the instant Grand Jury. The motion became moot when petitioner served Redcross with another subpoena directing her to appear and testify before the Grand Jury on December 12, 1979.
On December 11, 1979, Redcross, represented by Kelly, commenced an action in Federal District Court for damages against Wilcox and others, alleging that she had been illegally confined and otherwise deprived of her constitutional rights during the subject investigation. On the following day, she applied for the appointment of a special district attorney under section 701 of the County Law, on the ground that Wilcox and his staff were disqualified from presenting the Hansen case to the Grand Jury in view of the pending Federal action. Wilcox thereafter sought to have Kelly disqualified from representing Redcross in connection with her scheduled appearance before the Grand Jury on allegations that Kelly had gained confidential information about the homicide while serving as an Albany County Assistant District Attorney. Respondent Dwyer entertained both applications and, after hearing somewhat vehement arguments, effectively decided that Redcross should be examined and represented by other attorneys. He thereupon issued the order now challenged by petitioner.
While the validity of an appointment under section 701 of the County Law may be tested in a prohibition proceeding (see Matter of Board of Supervisors of Montgomery County v. Aulisi, 62 A.D.2d 644, 406 N.Y.S.2d 570, affd. 46 N.Y.2d 731, 413 N.Y.S.2d 374, 385 N.E.2d 1301), relief will be granted only if it is established that the court which made the designation acted without or in excess of its authority. Since the statute does provide for the temporary replacement of a prosecutor who is "disqualified from...
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