Opinion
276 CA 21-01664
06-03-2022
In the Matter of the Application of STATE of New York, Petitioner-Respondent, v. BOBBY P., an Inmate in the Custody of the New York State Department of Corrections and Community Supervision, Respondent-Appellant.
ELIZABETH S. FORTINO, DIRECTOR, MENTAL HYGIENE LEGAL SERVICE, UTICA (JOSEPH BETAR OF COUNSEL), FOR RESPONDENT-APPELLANT.
ELIZABETH S. FORTINO, DIRECTOR, MENTAL HYGIENE LEGAL SERVICE, UTICA (JOSEPH BETAR OF COUNSEL), FOR RESPONDENT-APPELLANT.
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, NEMOYER, AND CURRAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law and in the exercise of discretion without costs and the motion is granted.
Memorandum: Respondent, a convicted sex offender, appeals from an order denying the motion of Mental Hygiene Legal Service (MHLS) to withdraw as his appointed counsel in this Mental Hygiene Law article 10 proceeding (see generally CPLR 5511 ; Auerbach v. Bennett , 47 N.Y.2d 619, 627-629, 419 N.Y.S.2d 920, 393 N.E.2d 994 [1979] ). We reverse. Contrary to Supreme Court's determination, nothing in section 10.06 (c) limits a trial court's well established discretion to substitute or disqualify appointed counsel in appropriate circumstances (see generally Majewski v. Broadalbin-Perth Cent. School Dist. , 91 N.Y.2d 577, 583, 673 N.Y.S.2d 966, 696 N.E.2d 978 [1998] ). Nor, contrary to the assumption of the court and respondent, is the disposition of MHLS's motion controlled by a mechanistic application of the Rules of Professional Conduct (see Niesig v. Team I , 76 N.Y.2d 363, 369-370, 559 N.Y.S.2d 493, 558 N.E.2d 1030 [1990] ; see generally § 10.06 [c]). Rather, withdrawal or disqualification of counsel "may be warranted based on a mere appearance of impropriety" even in the absence of an actual conflict of interest ( Halberstam v. Halberstam , 122 A.D.3d 679, 679-680, 995 N.Y.S.2d 738 [2d Dept. 2014] ; see McCutchen v. 3 Princesses & AP Trust Dated Feb. 3, 2004 , 138 A.D.3d 1223, 1226, 29 N.Y.S.3d 611 [3d Dept. 2016] ). Under the unique circumstances of this case, we exercise our own discretion to grant MHLS's motion to withdraw "so as to avoid even the appearance of impropriety" on MHLS's part ( McCutchen , 138 A.D.3d at 1227, 29 N.Y.S.3d 611 [internal quotation marks omitted]; see Burton v. Burton , 139 A.D.2d 554, 554, 527 N.Y.S.2d 53 [2d Dept. 1988] ; see generally Matter of Von Bulow , 63 N.Y.2d 221, 224, 481 N.Y.S.2d 67, 470 N.E.2d 866 [1984] ). In light of our determination, we need not decide whether MHLS is actually prohibited by the Rules of Professional Conduct from representing respondent under these circumstances.