That interest is served by allowing a district attorney who has ground for thinking that he and his office may be disqualified to seek the appointment of a special prosecutor. Thus we agree with the court in People v. Schrager, 74 Misc.2d 833, 834, 346 N.Y.S.2d 101 (Sup.Ct. Queens County 1973) that a district attorney seeking to disqualify himself or herself may do so upon “a good faith application containing the reasonable grounds for his belief that he is so disqualified.”

That interest is served by allowing a district attorney who has ground for thinking that he and his office may be disqualified to seek the appointment of a special prosecutor. Thus we agree with the court in People v. Schrager, 74 Misc.2d 833, 834, 346 N.Y.S.2d 101 (Sup.Ct. Queens County 1973) that a district attorney seeking to disqualify himself or herself may do so upon “a good faith application containing the reasonable grounds for his belief that he is so disqualified.”

The law looks beyond the subterfuge, when note or notes are given as an incident in the carrying out of a scheme to defraud by an attempt to change a confidential trust into a debtor-creditor relationship. Stecher v. State, 202 4 Wis. 25, 231 N.W. 168, 70 A.L.R. 203, and note at page 208; People v. Schrager, 315 Ill. 169, 146 N.E. 151. It is not the province of this court to judge the sufficiency of the evidence.

Section 80 of the Criminal Code (Ill. Rev. Stat. 1937, chap. 38, par. 214) provides: "If any State, county, township, city, town, village or other officer elected or appointed under the constitution or laws of this State, or any clerk, agent, servant, or employee of any such officer, embezzles or fraudulently converts to his own use, or fraudulently takes or secretes with intent so to do, any money, bonds, mortgages, coupons, bank bills, notes, warrants, orders, funds or securities, books of record, or of accounts, or other property belonging to, or in the possession of the State or such county, township, city, town or village, or in possession of such officer by virtue of his office, he shall be imprisoned in the penitentiary not less than one nor more than fifteen years." In Spalding v. People, 172 Ill. 40, and People v. Schrager, 315 id. 169, we held that where one wrongfully and intentionally appropriates to his own use the property of another lawfully in his possession the offense of embezzlement is complete. The check of the Indiana Harbor Belt Railway Company was the property of the city of Chicago. It came into the possession of the defendant by reason of and during the course of his employment and was wrongfully appropriated to his own use.

The law calls such a transaction a wrongful conversion, from which a fraudulent intent can be inferred'. (See, also, People v. Lyon, 33 Hun (N.Y.), 623, 637; People v. Schrager, 315 Ill. 169 [146 N.E. 151, 154]; Orr v. State, 6 Ga. App. 628 [65 S.E. 582]; Commonwealth v. Tenney, 97 Mass. 50, 58; State v. Leicham, 41 Wis. 565; People v. Butts, 128 Mich. 208 [87 N.W. 224]; State v. Merkel, 189 Mo. 315, 319 [87 S.W. 1186]; State v. Kortgaard, 62 Minn. 7, 16 [64 N.W. 51, 55]; National Life etc. Ins. Co. v. Gibson, 31 Ky. Law Rep. 101 [101 S.W. 895, 897, 12 L.R.A. (N.S.) 717]; Gurley v. State,supra; Patterson v. United States, 39 App. [D.C.] 84, 90.) [6] "The crime of embezzlement is purely statutory, and legislation with reference thereto resulted from the failure of prosecutions under the common law crime of larceny to reach a case where the possession of property was obtained by consent, and the resulting breach of trust by the agent, officer or bailee, although it as effectually deprived the owner of his property as though it had been taken out of his possession by stealth, was not punishable at common law.

He did not manipulate his accounts to shield another's peculations, for he expressly disclaimed that any other person was implicated with him. A guilty intent is necessarily inferred from his voluntary acts, the inevitable effect of which was to deprive the receivers of their property and the appropriation of it to his own use. Intention to restore the money wrongfully taken cannot eradicate the criminal nature of the transaction. ( People v. Schrager, 315 Ill. 169; Spalding v. People, 172 id. 40; 2 Bishop on Crim. Law, ___ 9th ed. ___ sec. 352.) His statement that he knew a term of imprisonment awaited him is an acknowledgment of his guilt.

We reject defendant's contention that County Court erred in granting the District Attorney's application for appointment of a Special District Attorney pursuant to County Law § 701. The application contains reasonable grounds supporting the position of the District Attorney that he is disqualified from prosecuting defendant based upon Canon 9 of the Code of Professional Responsibility (see, People v. Schrager, 74 Misc.2d 833, 834; see also, People v. Baker, 99 A.D.2d 656, appeal dismissed 64 N.Y.2d 1027; People v. Anonymous, 126 Misc.2d 673, 677). The record does not support defendant's contention that the appointment of a Special District Attorney was not effected in accordance with 22 NYCRR 200.15 (see, People v. Germano, 249 A.D.2d 489, lv denied 92 N.Y.2d 897).

While court designation of a special prosecutor in limited instances has been sanctioned for over 150 years, judicial opinions interpreting such provisions are scarce and have usually concentrated on disqualifications stemming from some relationship between the prosecuting official and one accused of criminal conduct (Matter of Kelley, 83 Misc.2d 776; People v Schrager, 74 Misc.2d 833; cf. People v Rupp, 75 Misc.2d 683 [no authorization under statute to appoint a Special Assistant District Attorney]). Only one appellate level decision in which the lawfulness of a Special District Attorney's appointment was at stake has been called to our attention, but it arose on an appeal from a judgment of conviction; the court was divided on what statute was controlling, and the designation had been made on account of the District Attorney's conceded illness (People v Lytle, 7 App. Div. 553).

The law calls such a transaction a wrongful conversion, from which a fraudulent intent can be inferred." See, also, People v. Lyon, 33 Hun [N.Y.] 623, 637; People v. Schrager, 315 Ill. 169, 146 N.E. 151, 154; Orr v. State, 6 Ga.App. 628, 65 S.E. 582; Com. v. Tenney, 97 Mass. 50, 58; State v. Leicham, 41 Wis. 565; People v. Butts, 128 Mich. 208, 87 N.W. 224; State v. Merkel, 189 Mo. 315, 319, 87 S.W. 1186; State v. Kortgaard, 62 Minn. 7, 16, 64 N.W. 51, 55; National Life, etc., Ins. Co. v. Gibson, 31 Ky. Law Rep. 101, 101 S.W. 895, 897 [12 L. R. A. (N. S.) 717]; Gurley v. State, supra; Patterson v. U.S. 39 App. D. C. 84, 90. The crime of embezzlement is purely statutory, and legislation with reference thereto resulted from the failure of prosecutions under the common-law crime of larceny to reach a case where the possession of property was obtained by consent, and the resulting breach of trust by the agent, officer, or bailee, although it as effectually deprived the owner of his property as though it had been taken out of his possession by stealth, was not punishable at common

Public confidence demands that there be no conflict of interest or appearance of a conflict. People v. Shrager, 74 Misc.2d 833. Here, where one of the eye witnesses to the incident was an assistant district attorney, who is assigned to Utica City Court, and where that person's testimony seems to be more favorable to the defendant, it appears that it would be difficult for other members of his office to vigorously cross examine that witness to properly prosecute this case.