People v Marrano

[*1] People v Marrano 2023 NY Slip Op 50420(U) Decided on May 8, 2023 City Court Of Glens Falls, Warren County Hobbs, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 8, 2023
City Court of Glens Falls, Warren County

People of the State of New York

against

Daniel V. Marrano, Defendant



Docket No. CR-0332-23


Hon. Jason M. Carusone, Warren County District Attorney, Ryan Christensen, Esq., Assistant District Attorney

Gregory V. Canale, Esq., Warren County Public Defender, Jeffrey L. Ferguson, Esq., and Justin Wodicka Assistant Public Defenders Gary C. Hobbs, J.

BACKGROUND FACTS

On June 9, 2022, the defendant was charged with the crimes of Aggravated Harassment in the Second Degree [Penal Law § 240.30(2)] and Criminal Impersonation in the Second Degree [Penal Law § 190.25(3)], which charges were filed in the Town Court, Town of Queensbury.

On or about July 22, 2022, under this Court's Docket No.: CR-1424-22, the defendant was charged with two (2) counts of Harassment in the Second Degree [Penal Law § 240.26(3)] concerning alleged harassing letters sent to homes of Assistant District Attorneys Avi Goldstein, Connor Smith, and Morgan Cosentino. The Warren County District Attorney's Office sought and obtained a Special Prosecutor, Washington County District Attorney Anthony Jordan, to prosecute the Harassment Second Degree charges. On January 17, 2023, the charges of Harassment in the Second Degree were resolved by a plea bargain with the Defendant receiving an Adjournment in Contemplation of Dismissal with a six-month full no-contact order of protection in favor of ADAs Goldstein, Smith, and Cosentino. The defendant's ACOD and Order of Protection will expire on July 17, 2023.

There is no dispute that the Defendant's original charges of Aggravated Harassment in the Second Degree [Penal Law § 240.30(2)] and Criminal Impersonation in the Second Degree [Penal Law § 190.25(3)] are unrelated to the offenses of Harassment in the Second Degree [Penal Law § 240.26(3)] in that no employee of the District Attorney's Office was an alleged victim or would be a witness in the June 9, 2022, Aggravated Harassment in the Second Degree or Criminal Impersonation case. According to the pleadings and supporting depositions regarding the Harassment Second Degree case, none of the named Assistant District Attorneys know or knew the defendant when they received letters at their respective homes.

On February 15, 2023, the defendant moved the Queensbury Town Court for an order seeking disqualification of the Warren County District Attorney's Office from prosecuting the defendant on these charges alleging that certain Assistant District Attorneys have a conflict of interest.

On March 10, 2023, Hon. Michael Muller issue a written decision and order finding that, pursuant to County Law § 701 and 22 N.Y.C.R.R. § 200.15, the Warren County District Attorney's Office was disqualified from prosecuting the above-named defendant on the pending charges on the grounds that the "risk of an appearance of impropriety and risk of prejudice (to the defendant) cannot be ignored." [March 10, 2023, Decision and Order]. On March 15, 2023, [*2]the justices of the Queensbury Town Court recused themselves from presiding over these charges and the matter was subsequently transferred to this Court.

On March 27, 2023, the People moved this Court, pursuant to CPLR § 2221(d), to be allowed to reargue their opposition to the defendant's original motion seeking disqualification of the District Attorney's Office indicating that the Queensbury Town Court failed to consider the District Attorney's assertion that disqualification of the District Attorney's Office under these facts would incentivize defendants to commit offenses against prosecutors and then claim that the prosecutor has a conflict of interest.On or about March 30, 2023, the case file was received by this Court, and this Court granted leave to reargue. By Decision and Order dated April 19, 2023, this Court granted the District Attorney's Office request to reargue. On April 28, 2023, this Court heard oral arguments from the parties. The Defendant asserts that the Harassment Second Degree charges, which involved three (3) Assistant District Attorneys as alleged victims requires disqualification of the entire District Attorney's Office from prosecuting the defendant in the present case as the Harassment 2d Degree charges created an actual conflict of interest or a substantial risk of an abuse of confidence in prosecution of the present case. The Defendant asserts that the Court of Appeals decision in People v. Zimmer, 51 NY2d 390, 434 N.Y.S.2d 206, 414 N.E.2d 705 (1980) is applicable in the present case and mandates disqualification. The People assert that there is no actual conflict of interest or a substantial risk of an abuse of confidence in prosecution of the present case since the Harassment 2d charges did not involve the District Attorney or Assistant District Attorneys involved in the prosecution of the present case. In addition, the People assert that granting the defendant's request for disqualification would encourage defendants to avoid prosecution by merely mailing harassing letters to Assistant District Attorneys and/or to any assigned Special Prosecutor. The defendant could then forum shop for a favorable prosecutor and avoid prosecution by creating an alleged conflict of interest with any member of the District Attorney's Office and every assigned Special Prosecutor. The People also assert that the facts of the present case are entirely different than the factual basis for the holding in People v. Zimmer, 51 NY2d 390, 434 N.Y.S.2d 206, 414 N.E.2d 705 (1980) and, as a result, the holding in Zimmer is not applicable to the present case.

In this case, there is no assertion that the District Attorney or Assistants assigned to the present case were alleged victims of harassment by the defendant. There is no assertion that any member of the District Attorney's Office will be a witness in the present case or that any other witnesses or evidence from the Harassment 2d charges will be used to prosecute the defendant in the present case. The defendant has failed to assert or prove that the Assistant District Attorneys handling the charges of Aggravated Harassment and Criminal Impersonation are engaged some biased, unfair, prejudicial, or improper conduct because of the defendant's resolved Harassment 2d Degree case.

ANALYSIS

Although County Law § 701 grants authority to a superior court 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. See, County Law § 701; People v Nelson, 167 Misc 2d 665, 668 [City Court, City of New York, 1995]. Thus, a local criminal court has the inherent authority to, under the proper circumstances, disqualify the District Attorney's Office from prosecuting a particular defendant and refer the case to the Superior Court for appointment of a special prosecutor. See, People v Nelson, 167 Misc 2d 665, 668 [City Court, City of New York, 1995]; People v Wyatt, 140 Misc [*3]2d 69, 73 [City Ct, Bronx County, 1988]; 1 Criminal Procedure in New York, Jurisdiction - Local criminal courts § 1:9 (2d); Handling a Criminal Case in New York, Prosecutor: the district attorney - Special prosecutor § 1:12 (While a superior court must appoint, a lower court may disqualify).

A court may not lightly undertake to disqualify a district attorney, since "a constitutional officer chosen by the electorate and whose removal by a court implicates separation of powers considerations." People v Jaquish, 18 Misc 3d 302, 304 [Essex County Ct 2007], quoting, People v. Nelson, 167 Misc 2d 665, 647 N.Y.S.2d 438; see also, People v. Zimmer, 51 NY2d 390, 434 N.Y.S.2d 206, 414 N.E.2d 705; People v. Shinkle, 51 NY2d 417, 434 N.Y.S.2d 918, 415 N.E.2d 909).

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. People v Jaquish, 18 Misc 3d 302, 304 [Essex County Ct 2007], citing, People v. Zimmer, 51 NY2d 390, 434 N.Y.S.2d 206, 414 N.E.2d 705; People v. Shinkle, 51 NY2d 417, 421, 434 N.Y.S.2d 918, 415 N.E.2d 909; Schumer v. Holtzman, 60 NY2d 46, 55, 467 N.Y.S.2d 182, 186, 454 N.E.2d 522, 526; People v Nelson, 167 Misc 2d 665, 672 [Crim Ct., Kings County, 1995]. The phrase, "a substantial risk of an abuse of confidence," refers to the "opportunity for abuse of confidences entrusted to an attorney. People v Fountain, 55 Misc 3d 211, 217-18 [Rensselaer County Ct 2016], citing, People v. Shinkle, 51 NY2d 417, 420, 434 N.Y.S.2d 918, 415 N.E.2d 909. Thus, a defendant seeking disqualification of a District Attorney and appointment of a special prosecutor must "demonstrate actual prejudice or so substantial a risk thereof as could not be ignored." People v Fountain, 55 Misc 3d 211, 217-18 [Rensselaer County Ct 2016], quoting, Matter of Schumer v. Holtzman, 60 NY2d 46, 56, 467 N.Y.S.2d 182, 454 N.E.2d 522 [1983].

The court's authority to disqualify a District Attorney should be exercised sparingly. See, In the Matter of Working Families Party v. Fisher, 23 NY3d 539, 992 N.Y.S.2d 172, 15 N.E.3d 1181 (2014); In re Soares v. Herrick, 20 NY3d 139, 957 N.Y.S.2d 664, 981 N.E.2d 260 (2012); People v Fountain, 55 Misc 3d 211, 217-18 [Rensselaer County Ct 2016]. The burden is on the defendant to show actual prejudice. People v. Johnson, 20 AD3d 808, 799 N.Y.S.2d 276 (3d Dept.2003). Generally, an inference of impropriety will not, by itself, be sufficient to grant the relief. People v. Vanderpool, 217 AD2d 716, 629 N.Y.S.2d 307 (3d Dept.1995); People v Fountain, 55 Misc 3d 211, 217-18 [Rensselaer County Ct 2016]. Thus, courts have held that an appearance of impropriety, standing alone, will not justify disqualification. People v. Early, 173 AD2d 884, 885, 569 N.Y.S.2d 756, 757, leave to appeal denied, 79 NY2d 1000, 584 N.Y.S.2d 454, 594 N.E.2d 948; People v. Vanderpool, 217 AD2d 716, 629 N.Y.S.2d 307 (3d Dept.1995). Under controlling case law, absent some proof of actual prejudice arising from a conflict of interest or a substantial risk of an abuse of confidence, the trial court should deny a motion to disqualify a District Attorney. See, People v. English, 88 NY2d 30, 643 N.Y.S.2d 16, 665 N.E.2d 1056; Matter of Schumer v. Holtzman, 60 NY2d 46, 55, 467 N.Y.S.2d 182, 454 N.E.2d 522; Matter of Kavanagh v. Vogt, 88 AD2d 1049, 452 N.Y.S.2d 684 (3d Dept. 1982); Matter of Soares v Herrick, 88 AD3d 148, 154 [3d Dept 2011], aff'd, 20 NY3d 139 [2012] (holding that the defendant failed to demonstrate "actual prejudice" which is needed to remove the District Attorney from prosecution of the case).

However, courts have held that, in rare situations, the appearance of impropriety may be a sufficient basis for disqualification, when the appearance is such as to "discourage public [*4]confidence in our government and the system of law to which it is dedicated." People v. Zimmer, 51 NY2d 390, 396, 434 N.Y.S.2d 206, 414 N.E.2d 705 [1980]. In a case of that nature, the defendant and the public at large are entitled to protection against the appearance of impropriety. Id. at 396; People v. Adams, supra, at 612—613, 964 N.Y.S.2d 495, 987 N.E.2d 272.

In the following cases, the courts have found no conflict of interest or other grounds sufficient to disqualify the District Attorney. See, People v. Vanderpool, 217 AD2d 716, 629 N.Y.S.2d 307 (prosecuting attorney represented defendant in a criminal case 10 years earlier and members of the defendant's family on prior occasions); People v. George, 137 AD2d 876, 524 N.Y.S.2d 557 (prosecuting attorney represented defendant in unrelated matter 8 years earlier); People v. Early, 173 AD2d 884, 569 N.Y.S.2d 756 (a defendant's prior attorney was appointed as an assistant district attorney during the pendency of the criminal proceeding); People v. Bombard, 203 AD2d 711, 610 N.Y.S.2d 965 (the law firm of the district attorney's spouse represented clients who were opposed to defendant's interests); People v. McCullough, 141 AD2d 856, 530 N.Y.S.2d 198 (the medical examiner who testified at the trial was the father of the prosecuting attorney); People v. Castaldo, 48 Misc 3d 996, 12 N.Y.S.3d 789 [Sup.Ct. Putnam County 2015] (the trial court denied a request for the appointment of a special district attorney, made by a defendant in a criminal case who was a third party witness in a civil case brought by the District Attorney of Putnam County against the Putnam County Sheriff for libel and slander. The Sheriff had asserted a separate civil lawsuit against the District Attorney and the Defendant that the District Attorney was attempting to use his office as prosecutor to advance his interests in the separate civil case).

In the present case, the defendant relies on the Court of Appeals decision in People v. Zimmer, 51 NY2d 390, 434 N.Y.S.2d 206, 414 N.E.2d 705 [1980] to assert that the District Attorney's Office must be disqualified in this case. In Zimmer, the District Attorney who prosecuted the charges against defendant was, at the time he presented the case to the Grand Jury, also counsel to and a stockholder of the corporation in the course of whose management the defendant is alleged to have committed the crimes with which he was charged. Id. at 390. In its decision, the Court of Appeals noted, that under these facts, the "conflict was plain. The corporation and its stockholders in effect were the complainants. The Hamilton Grand Jury investigation that culminated in the defendant's indictment was precipitated, to quote the People's brief, by 'transactions which were revealed by the records of the corporation and stockholders.' Aside from his financial interest as a stockholder, as counsel to the corporation the District Attorney was its spokesman in legal matters, of which this was one." Id. at 395.

Unlike the facts in Zimmer, in the present case, neither the District Attorney nor the Assistant District Attorneys, who are handling this case, were alleged victims in the defendant's Harassment 2d Degree charges. The defendant's Harassment 2d Degree charges have resolved. The underlying facts of the defendant's charges Aggravated Harassment in the Second Degree [Penal Law § 240.30(2)] and Criminal Impersonation in the Second Degree [Penal Law § 190.25(3)] are unrelated to the facts of the defendant's Harassment 2d Degree charges. There is no legal or factual basis for members of the District Attorney's office to be witnesses in the defendant's Aggravated Harassment in the Second Degree and Criminal Impersonation in the Second Degree case. The Assistant District Attorneys, who were alleged victims in the defendant's Harassment 2d Degree case, are not participating in the prosecution of the defendant on the pending charges of Aggravated Harassment and Criminal Impersonation. Thus, contrary [*5]to the facts in Zimmer, there is no actual conflict of interest. Furthermore, the defendant has failed to demonstrate any actual prejudice necessary to disqualify the District Attorney. Matter of Soares v Herrick, 88 AD3d 148, 154 [3d Dept 2011], aff'd, 20 NY3d 139 [2012]. Finally, this Court agrees with the People's position that assert that the granting the defendant's request for disqualification would encourage other defendants to avoid prosecution by merely mailing harassing letters to Assistant District Attorneys. The defendant could then disqualify any assigned Special Prosecutor by engaging in harassing conduct toward the assigned Special Prosecutor or his/her family.

Based on the foregoing, the defendant's motion to disqualify the Warren County District Attorney's Office from prosecuting him on the pending charges of Aggravated Harassment in the Second Degree [Penal Law § 240.30(2)] and Criminal Impersonation in the Second Degree [Penal Law § 190.25(3)] is DENIED.

Dated: May 8, 2023
ENTER
Hon. Gary C. Hobbs, Judge