Opinion
2003NY019871.
Decided March 2, 2005.
The attorney for the prosecution was Assistant District Attorney, Justin E. Herdman, Office of the District Attorney, NY, NY.
Defendant was represented by Eric E. Rothstein, Esq., Carlin Rothstein, NY, NY.
Defendant is charged with one count of Criminal Impersonation in the Second Degree, in violation of Penal Law § 190.25(3). He has brought a motion to disqualify the New York County District Attorney's Office and appoint a Special Prosecutor pursuant to County Law § 701.
Under County Law § 701, a superior criminal court may appoint a Special Prosecutor when the District Attorney and his assistants are disqualified from acting in a particular case at a term of any court. This discretionary authority to appoint a Special Prosecutor is vested exclusively in a superior criminal court. Because the New York City Criminal Court is a "local" and not a "superior" criminal court ( see CPL § 10.10), this Court is without jurisdiction to entertain an application to disqualify and appoint under County Law § 710. Matter of Morgenthau v. Crane, 113 AD2d 20 (1st Dep't 1985). Furthermore, this Court declines to follow those cases which have bifurcated the County Law § 701 procedure by finding that while lacking authority to appoint a Special Prosecutor, local criminal courts nonetheless possess the authority to disqualify a District Attorney under this statute. See People v. Rocci, 184 Misc 2d 670 (2000); People v. Nelson, 167 Misc 2d 665 (1995); People v. Wyatt, 140 Misc 2d 69 (1988); People v. Cassidy, 118 Misc 2d 110 (1983). Such bifurcation runs afoul of sound statutory construction, lacks appellate support and raises Constitutional separation of powers issues.
While the language of County Law § 701 suggests that any court may disqualify a District Attorney, the discretionary power to appoint a Special Prosecutor is clearly restricted to a superior criminal court. This restrictive language was added to the statute in 1974. See McKinney's Laws of 1974, Chapter 457. Prior to this amendment, the power to appoint a Special Prosecutor had resided in the particular court of record wherein the District Attorney was disqualified from acting. To read the amended statute as continuing to authorize any court to disqualify a District Attorney could lead to the objectionable result of a Criminal Court Judge disqualifying a District Attorney from a case and a Supreme Court Justice then declining to appoint a Special Prosecutor. This is unsound statutory construction. "In construing a statute which is ambiguous the construction to be adopted is the one which will not cause objectionable results." See McKinney's Statutes, § 141.
The scarce appellate guidance on this issue also supports a unitary rather than a bifurcated process under County Law § 701. In Matter of Morgenthau v. Crane ( 113 AD2d 20, supra) a motion was made in Criminal Court to disqualify the New York County District Attorney and appoint a Special Prosecutor. See People v. Anonymous, 126 Misc 2d 673 (1984). Criminal Court concluded that the 1974 amendment foreclosed its consideration of the application. The motion was denied without prejudice to renewal in a superior criminal court. Defendant thereafter brought the motion seeking the same relief in Supreme Court, where a Justice of that Court disqualified the District Attorney and appointed a Special Prosecutor for the Criminal Court case. See People v. Nuzzi, 128 Misc 2d 502 (1985). Upon appeal, the Appellate Division, First Department, reversed the order of the Supreme Court on substantive grounds, but noted that Criminal Court had properly denied the original application on jurisdictional grounds without prejudice to its renewal in the "proper forum." Matter of Morgenthau v. Crane, 113 AD2d at 21. At each level, the respective court had before it a single application to disqualify and appoint. There is no basis in this line of cases from which to reasonably infer the authority of a local criminal court to disqualify a District Attorney under County Law § 701.
A District Attorney is a constitutional officer independently elected by the voters of a county and charged by statute with the duty to prosecute crimes and offenses in that county. The removal of a District Attorney by a court implicates separation of powers considerations. Matter of Schumer v. Holtzman, 60 NY2d 46 (1983). "Authority . . . to displace a duly elected District Attorney, an officer of the executive branch of government, with a substitute appointed by a Judge from another branch of government, is derived solely from County Law § 701 . . . This exceptional superceder authority should not be expansively interpreted." People v. Leahy, 72 NY2d 510, 513-514 (1988). Since County Law § 701 deals with the judicial exercise of an "extraordinary authority" ( Leahy, 72 NY2d at 514) and its application has been "fastidiously" circumscribed by the Court of Appeals ( id. at 515), it would seem an unsupportable arrogation of power for a local criminal court to disqualify a District Attorney in the absence of clear authorization within County Law § 701.
This opinion does not address the scope of a Court's authority in considering an application for recusal of a particular Assistant District Attorney as distinct from the disqualification of the entire District Attorney's Office.
Since this Court is without jurisdiction to entertain this application to disqualify the District Attorney and appoint a Special Prosecutor, the application is denied without prejudice to its renewal in Supreme Court.