Opinion
1571/2016
07-31-2018
The PEOPLE of the State of New York, Plaintiff, v. Karla BARBA, Defendant.
Murray Richman, Esq., Bronx, and Stacy Richman, Esq., for defendant. Richard A. Brown, District Attorney of Queens County (Mary Kate Quinn, of counsel), for plaintiff.
Murray Richman, Esq., Bronx, and Stacy Richman, Esq., for defendant.
Richard A. Brown, District Attorney of Queens County (Mary Kate Quinn, of counsel), for plaintiff.
Joseph A. Zayas, J. Defendant, charged with Assault in the First Degree and related offenses for allegedly slashing the complainant with a Samurai sword, moves for the disqualification of the District Attorney and the appointment of a special prosecutor. Defendant Barba argues that her prior refusal to cooperate as a complainant in a prior, high-profile domestic violence case — the case against then-Senator Hiram Monserrate — prosecuted by the Queens District Attorney's Office (QDAO), together with her subsequent filing of lawsuits against the QDAO and individual prosecutors arising from that refusal to cooperate, have caused the QDAO to treat her unfairly in this domestic violence prosecution, particularly since the current complainant herein likewise refuses to cooperate in the prosecution of defendant. Defendant claims that the unfair prosecutorial treatment was manifested most prominently when the People refused to offer defendant, indicted for a class B violent felony offense which carries a minimum sentence of 5 years' incarceration ( Penal Law 70.02[3][a] ), a non-incarceration plea.
The People oppose defendant's motion in its entirety, arguing that defendant's motion is procedurally barred because it was not filed, as statutorily required, with the Office of the Deputy Administrative Judge of the City of New York (Hon. George J. Silver), and instead was filed in the felony domestic violence Part (K-15). The People also argue that the motion is meritless because, inter alia when they declined to offer defendant the non-incarceration plea, the People were simply following their long-standing post-indictment plea policy and their policy to prosecute domestic violence cases notwithstanding the complainant's change-of-heart refusal to cooperate, where there is other sufficient evidence to prosecute the accused.
Defendant's motion requires the Court to determine whether defendant's prior legal skirmishes and prior tumultuous relations with the QDAO warrants the disqualification of the District Attorney and the appointment of a special prosecutor. For the reasons set forth below, the Court finds that disqualification of the District Attorney and the appointment of a special prosecutor is not warranted under the circumstances of this case. Accordingly, defendant's motion is denied in all respects.
Factual Background
Prior Litigation
Under Queens County Indictment Number 576/2009, Hiram Monserrate, who was then serving as a New York State Senator, was charged with, inter alia , Assault in the Second and Third Degrees against defendant Karla Barba, for allegedly intentionally cutting her face with a broken glass and recklessly causing injury to her arm. Despite the People's numerous attempts to get defendant Barba to cooperate as a complainant in the case against Monserrate, defendant ultimately refused to cooperate with the QDAO, claiming that her injuries were the result of an accident. Nonetheless, the QDAO followed its standard policy of proceeding to trial on the domestic violence case without the cooperation of defendant, who was then a complainant in the Monserrate case, inasmuch as there was other admissible evidence to support the charges against Monserrate. Notably, defendant's prior refusal to cooperate with the QDAO as a complainant in the People's case against then-Senator Monserrate received a significant amount of media attention throughout the course of the proceedings and trial. In October 2009, a judge of this Court convicted Monserrate of Assault in the Third Degree after a non-jury trial.
Defendant Karla Barba used the name Karla Giraldo when she was a complainant in the criminal case against Monserrate.
After Monserrate's trial, defendant Barba filed lawsuits against various city employees and agencies, including the QDAO, Assistant District Attorney (ADA) Scott Evan Kessler, and another ADA, both in their individual and official capacities. Specifically, defendant claimed that the prosecutors conspired to violate her "right to be free from unlawful imprisonment, detention, and excessive and forceful interrogation," and that they conspired "to harass, injure, and detain [her] in order to elicit statements from her accusing [Monserrate] of domestic violence" (see Giraldo v. City of New York , 2011 WL 2150148 [E.D.N.Y. 2011] ). On May 27, 2011, the Federal District Court denied, in part, ADA Kessler's and the other ADA's motion to dismiss, holding that defendant's claims of unlawful detention could be raised against the ADAs in their individual capacities ( id. ).
On appeal, however, the Second Circuit reversed the District Court's ruling, holding that the prosecutors were entitled to absolute immunity for their alleged misconduct in interrogating defendant (see Giraldo v. Kessler , 694 F.3d 161 [2d Cir. 2012] ). The Second Circuit specifically found that because Barba/Giraldo was such an "important witness" in the case against Monserrate, her interrogation by the prosecutors was "an integral part of [the prosecutors'] advocacy function," and that the ADAs' conduct was "well within their legitimate function as prosecutors" ( Giraldo at 167 ).
Current Case
In the instant case, it is alleged that on June 8, 2016, defendant slashed her husband, Franklin Larrea, with a Samurai sword numerous times in front of his twelve-year-old son, Frank. During Larrea's 911 call, he stated, "My wife cut my arm! ... Please help! I'm dying!" Upon the EMT's arrival, EMT personnel applied a tourniquet to Larrea while en route to the hospital to prevent additional blood loss. Larrea's medical records revealed that he lost four pints of blood and sustained two deep lacerations to the bone, which caused a loss of motor function and sensation to his left hand. During Larrea's hospitalization, he provided two videotaped statements describing the incident, stating that defendant Barba assaulted him with a Samurai sword. According to the People, defendant Barba also admitted that she "cut" Larrea on his wrist.
On June 9, 2016, defendant was arraigned on the felony complaint, charging, inter alia , Assault in the First Degree, a class B violent felony offense. The court set bail and issued a full order of protection in favor of complainant Larrea. In addition, the People served defendant with their plea policy and speedy trial waiver policy, which states that the "Queen's District Attorney's Office does not engage in post-indictment plea bargaining." Defendant and her attorney signed the waiver and the matter was adjourned to June 23, 2016.
The QDAO assigned Assistant District Attorney Simiyon Haniff to prosecute the case against defendant Barba. ADA Haniff was not a member of the Domestic Violence Bureau or even employed by the QDAO during the Monserrate prosecution. Moreover, it was internally determined that Kessler, the Chief of the Domestic Violence Bureau, would not supervise the case and, instead, Deputy Bureau Chief, Kelly Sessoms-Newton, who was not involved in the Monserrate prosecution and was not named in the civil lawsuit, would supervise the matter and any plea negotiations.
At the June 23, 2016 appearance, the People made a plea offer of fifteen years' incarceration, which defendant rejected. In addition, defendant made a bail application due to an alleged change in circumstances. Specifically, defendant cited to complainant Larrea's conversation with defense counsel in which he stated that he was injured accidentally when "knives fell on" him during the course of an argument with defendant Barba.
On July 28, 2016, defendant was indicted for, inter alia , Assault in the First Degree. After the Grand Jury presentment, Larrea informed ADA Haniff that he no longer sought to "press charges" against defendant Barba. At defendant's August 2, 2016 arraignment, defendant Barba again requested bail reduction and argued that the order of protection was unnecessary. To support her position, defendant presented an affidavit from Larrea reasserting that his injuries were the result of an accident. In the affidavit, however, Larrea also admits that he and defendant had an "altercation that resulted in physical injury to his arm." The court denied defendant's request.
In May 2017, the case was transferred to ADAs Nicole Reid and Mary Kate Quinn, neither of whom worked in the QDAO during Monserrate's prosecution. Complainant Larrea informed the newly assigned ADAs that he did not wish to speak to anyone from their office. At the next court appearance, the People did not have a new plea offer for defendant.
Following the completion of suppression hearings in which the court denied suppression, defense counsel requested a plea offer with a probationary sentence, which the People refused as defendant Barba was charged with a class B violent felony offense, for which a five-year minimum period of incarceration was required. Nonetheless, the People agreed to arrange a meeting between defense counsel and Deputy Bureau Chief Sessoms-Newton. After meeting with defense counsel and speaking with Larrea and his son, the People determined that it would prosecute defendant with or without Larrea's cooperation. The People, however, informed defendant that it would not oppose the imposition of the five-year minimum sentence and would not mandate that defendant plea to the entire indictment.
Motion for Special Prosecutor
In April, 2018, defendant filed a motion for an order appointing a special prosecutor, arguing that her refusal to cooperate in the Monserrate case and her ensuing lawsuits have led to unfair treatment by the People during the prosecution. Specifically, defendant cites the People's decision not to offer a non-incarceratory plea deal and their decision to prosecute defendant despite Larrea's refusal to cooperate.
The People filed a response opposing defendant's motion in its entirety. The People argue that the motion is procedurally barred and, in any event, the motion should be denied because defendant has not demonstrated that she suffered actual prejudice or the sufficient appearance of impropriety to warrant the appointment of a special prosecutor. Moreover, the People contend that their pretrial plea negotiations with defendant, as well as their decision to prosecute defendant without the complainant's cooperation, were not in any way designed to unfairly target defendant Barba but were, in fact, consistent with the QDAO's long-standing, extant policies — both their post-indictment plea policy and their policy of prosecuting domestic violence cases notwithstanding the complainants' refusal to cooperate. Specifically, the People cite to the notice of the QDAO's post-indictment plea policy which was provided to defendant when she and her attorney signed the waiver, providing that "Defendants who wish to plead guilty to felony charges post indictment are required to plead guilty to the top count of the indictment pending against them. The Queens County District Attorney's Office does not engage in post-indictment plea bargaining." In addition, the QDAO's policy regarding the prosecution of alleged batterers is published on the QDAO website, which states that their prosecutors "proceed[ ] to trial on cases without the cooperation or testimony of the victim, where there exist[s] other adequate and admissible evidence to support the charges" (http://www.queensda.org/domesticviolence.html, accessed July 17, 2018). In support of their claims, the People set forth the facts of four recent domestic violence prosecutions in which the People insisted upon a top-count plea even though the complainant in those cases refused to cooperate with the prosecution. Indeed, in each of those cases the defendant pled guilty to the top count (i.e., Attempted Assault in the First Degree, Attempted Murder in the Second Degree, and Assault in the First Degree) and received a sentence of from 7 to 16 years' incarceration.
Upon receipt of the People's response, Part K-15 referred the motion to this Court pursuant to this Court's directive that such motions be referred to the Administrative Judge of the Supreme Court, Criminal Term, to ensure that the motion gets forwarded to the Deputy Chief Administrative Judge of the City of New York. On May 24, 2018, the Deputy Chief Administrative Judge, acting pursuant to County Law § 701, assigned defendant's special prosecutor application to this Court for all purposes.
Conclusions of Law
Contrary to the People's claim, defendant's motion is not procedurally barred. Although defendant filed the motion in Part K-15, this Court, pursuant to Section 701 of the County Law, referred the matter to the Hon. George J. Silver, Deputy Chief Administrative Judge, who assigned the matter to this Court in an Administrative Transfer Order dated May 24, 2018 (see 22 NYCRR 200.15 ). As such, there is no procedural bar.
Although the People argued that the motion was improperly filed, that objection has been effectively mooted because defendant's motion has been assigned to this Court by the Deputy Chief Administrative Judge (after this Court referred the matter to the Deputy Chief Administrative Judge for his review). Indeed, this Court has jurisdiction to decide this motion under the Administrative Rules of the Unified Court System and Uniform Rules of the Trial Courts (as newly amended on July 2, 2014), which provide the following: "Any party filing with a superior court an application for appointment of a special district attorney, pursuant to section 701 of the County Law, shall make the application to the Chief Administrator of the Courts or to the appropriate Deputy Chief Administrative Judge. The Chief Administrator, Deputy Chief Administrative Judge, or appropriate Administrative Judge shall assign a superior court judge to consider the application as provided by law, selected from a list of judges established for that purpose that has been approved by the Chief Administrator and the Presiding Justice of the appropriate Appellate Division" (see 22 NYCRR 200.15 ). This Court is on the "list of judges" designated to consider motions for the appointment of a special prosecutor (id. ).
Reaching the merits, it is well settled in New York that "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 ..." ( People v. Adams , 20 N.Y.3d 608, 612, 964 N.Y.S.2d 495, 987 N.E.2d 272 [2013]quoting Schumer v. Holtzman , 60 N.Y.2d 46, 55, 467 N.Y.S.2d 182, 454 N.E.2d 522 [1983] ). Accordingly, "[t]he objector should demonstrate actual prejudice or so substantial a risk thereof as could not be ignored" ( id. ). That said, "in rare situations, the appearance of impropriety itself is a ground for disqualification ..." ( Adams at 613, 964 N.Y.S.2d 495, 987 N.E.2d 272 ; cf. People v. Vanderpool , 217 A.D.2d 716, 718, 629 N.Y.S.2d 307 [3d Dept. 1985] [defendant's motion for the appointment of a special prosecutor on the grounds that the prosecuting attorney represented defendant as a defense attorney on a different matter ten years prior, as well as represented members of defendant's family, was properly denied inasmuch as defendant did not offer proof of prejudice and "the inference of impropriety" was not, by itself, sufficient to grant the defendant the relief that he sought] ). Indeed, although there is "no constitutional right to a plea bargain ... an appearance of impropriety may arise when the record provides an objective basis to question whether the prosecutor is exercising pretrial prosecutorial discretion in an evenhanded manner based on the merits of the case or other prosecutorial concerns" ( Adams at 613, 964 N.Y.S.2d 495, 987 N.E.2d 272 ).
Here, defendant has not demonstrated that there was either actual prejudice or a substantial risk of prejudice in this case. Nor has defendant demonstrated an appearance of impropriety sufficient to raise questions as to whether the People exercised their pretrial prosecutorial discretion in an evenhanded manner. While defendant did previously refuse to cooperate with the QDAO as a complainant in a high-profile case in 2008-2009, and thereafter filed lawsuits against members of the Domestic Violence Bureau in their individual and official capacities, these facts alone do not meet the applicable high standard for removing an elected, constitutional officer who is charged by statute with the duty of conducting "all prosecutions for crimes and offenses cognizable by the courts of the county for which he or she shall have been elected" ( County Law 700[1] ) (see Matter of Soares v. Herrick , 20 N.Y.3d 139, 144, 957 N.Y.S.2d 664, 981 N.E.2d 260 [2012] ).
The Court of Appeals' decisions in Adams and Soares , as applied to the issues in this case, are dispositive here. The Court therefore denies defendant's motion to disqualify the District Attorney and appoint a special prosecutor, inasmuch as defendant has failed to meet the legal standard required to mandate such relief.
In Adams , the Court of Appeals held that the District Attorney's refusal to permit defendant to plead guilty to a reduced charge because the complainant, a sitting judge who presided over cases involving that District Attorney's Office, insisted that the matter go to trial, demonstrated an "unacceptably great appearance of impropriety" ( id. at 613, 964 N.Y.S.2d 495, 987 N.E.2d 272 ). Defendant's motion for disqualification in Adams included an affidavit from one of the defendant's former attorneys in which the attorney asserted: (1) "that, in his view, the District Attorney's office was treating the complainant's wishes much different than it would other victims" ( id. at 611, 964 N.Y.S.2d 495, 987 N.E.2d 272 ); and (2) that in his decade-long experience in defense work, he had never seen the District Attorney's Office take "such a hard-line position in a case involving comparable charges and a similar defendant" ( id. at 613, 964 N.Y.S.2d 495, 987 N.E.2d 272 ). Inasmuch as the prosecution failed to "dispel the appearance of inappropriate and disparate treatment," the Court found that the case constituted one of the "rare" instances in which the appearance of impropriety was implicated and disqualification was necessary ( id. ). Significantly, although the District Attorney's office in Adams "den[ied] the allegation" that it had "singled out" defendant "for harsh treatment," the People failed to "rebut the allegation with even a single example of a comparable case that it had similarly refused to resolve" ( id. at 612, 964 N.Y.S.2d 495, 987 N.E.2d 272 ). The People in Adams also failed to offer an "example" of a case "when it had refused to offer a plea to a violation or agree to dispose of the case by ACD in a comparable misdemeanor case" ( id. ). Accordingly, the Court of Appeals reversed the trial court's decision, holding that while there was no "actual impropriety," there was "an unacceptably great appearance of impropriety — the appearance that the District Attorney's office refused to accept a reduced charge because the complainant was a sitting judge who demanded that the matter go to trial, rather than because a trial was, in its own disinterested judgment, appropriate." ( Id. at 613, 964 N.Y.S.2d 495, 987 N.E.2d 272 ).
The underlying facts of this case are wholly distinguishable from the facts in Adams , where a sitting criminal court judge was the complainant in a criminal case which was pending in the judge's own courthouse — the same courthouse where the prosecutors regularly appeared before the judge. Here, unlike Adams , the defendant's claims of prejudice are rooted in a case for which the civil litigation concluded nearly six years ago (see Giraldo v. Kessler , 694 F.3d 161 [2d Cir. 2012] ), and the criminal litigation concluded nearly nine years ago. Moreover, to address any appearance of impropriety, the QDAO only assigned Assistant District Attorneys who were not employed by the Office during the Monserrate litigation and assigned the Deputy Bureau Chief to supervise the plea negotiations to ensure that Kessler was in no way involved with the prosecution of the instant case.
Furthermore, unlike Adams , here there is no basis to find that defendant has not been treated the same as other similarly situated defendants. Nor is there any basis to find that the QDAO has unfairly refused to deviate from its standard plea bargain policy during the pendency of this case (see People v. Malone , 46 Misc. 3d 918, 997 N.Y.S.2d 304 [Sup. Ct. Queens County 2014] ). Defendant does not dispute that she received written notice — notice which is provided to every single defendant in arraignments — of the District Attorney's uniform policy prohibiting post-indictment plea bargaining (i.e. , "Defendants who wish to plead guilty to felony charges post indictment are required to plead guilty to the top count of the indictment pending against them"). That all defendants receive this notice decidedly undercuts defendant's claim that she is being treated unfairly because the People are refusing to offer a non-incarceration plea. On the contrary, the People's refusal to offer defendant, indicted for committing a class B violent felony offense, for which the minimum sentence is 5 years' incarceration ( Penal Law 70.02[3][a] ), a non-incarceratory plea to a lesser charge is wholly consistent with the Office's long-standing post-indictment plea policy, demonstrating the "evenhanded manner" ( Adams at 613, 964 N.Y.S.2d 495, 987 N.E.2d 272 ) in which it is administered in Queens County (see ABA Guilty Plea Standard § 14-3.1 [d] ["Similarly situated defendants should be afforded equal plea agreement opportunities"] ). In any event, defendant "has no right to a plea bargain;" thus, the People's decision not to offer a plea acceptable to defendant was well within their discretion ( Lafler v. Cooper , 566 U.S. 156, 180, 132 S.Ct. 1376, 182 L.Ed.2d 398 [2012] ).
The same is true for defendant's contention that the QDAO's decision to prosecute her case without Larrea's cooperation was the product of unfair treatment. The standard policy of the QDAO is to prosecute domestic violence cases, with or without the victim's cooperation, as long as there is evidence to support a conviction. In fact, this policy is reflected on the website of the Domestic Violence Bureau, which boasts of a reduction in the number of domestic violence case dismissals and an increase in the percentage of convictions by virtue of the many occasions in which "assistants have proceeded to trial on cases without the cooperation or testimony of the victim, where there existed other adequate and admissible evidence to support the charges."
Indeed, in opposition to the motion to appoint a special prosecutor, the People set forth the facts — factual allegations which remain unrebutted by defendant — of four recent domestic violence prosecutions in which the People insisted upon a top-count plea even though the complainant in those cases refused to cooperate with the prosecution. In each of those cases the defendant pled guilty to the top count (i.e., Attempted Assault in the First Degree, Attempted Murder in the Second Degree, and Assault in the First Degree) and received a sentence of from 7 to 16 years' incarceration. Thus, unlike the District Attorney's office in Adams , where the People failed to "rebut the allegation with even a single example of a comparable case that it had similarly refused to resolve" ( id. at 612, 964 N.Y.S.2d 495, 987 N.E.2d 272 ), the People here provide numerous examples of comparable cases where they insisted upon a top count plea notwithstanding the refusal of the complainant to cooperate. Although the facts of every case are different, it appears that the People's position in this case — where they agreed not to oppose a sentence of five years' incarceration, the minimum for a top count (First Degree Assault) guilty plea ( Penal Law 70.02[3][a] ) — is certainly not unreasonable on its face, and, when compared to other similarly situated defendants, conclusively dispels any notion whatsoever that defendant here is being improperly singled out for unfair treatment.
Here, there is a significant amount of evidence against defendant to support this prosecution, including a 911 call, medical records, and statements from Mr. Larrea, his son, and defendant herself, all of which demonstrates that the continued prosecution of defendant is not only not the result of unfair treatment, retribution, or other impropriety, but is clearly in line with the QDAO's extant policy. Significantly, defendant fails to proffer any evidence whatsoever to establish her claim of unfair treatment and there is no basis at all to conclude that the QDAO is unfairly refusing to deviate from its policy of prosecuting domestic violence cases where there is other significant evidence of guilt to permit prosecution without the victim's cooperation.
The QDAO, of course, is hardly alone in having to deal with uncooperative complainants in their prosecution of domestic violence cases. It has been estimated that there are uncooperative witnesses in 80-90% of domestic violence cases (see Lisa Marie De Sanctis, Bridging the Gap Between the Rules of Evidence and Justice for Victims of Domestic Violence, 8 Yale Journal of Law and Feminism 359, 367 [1995] ; see also People v. Santiago , 2003 WL 21507176, 2003 N.Y. Misc. Lexis 829 [Sup. Ct. New York County, 2003] [noting "the frequency with which battered women seek to withdraw as witnesses"] ), and that prosecutors must proceed without the complainant as often as 64% of the time (see Brooks Holland, Using Excited Utterances to Prosecute Domestic Violence in NY : The Door Opens Wide, or Just a Crack , 8 Cardozo Women's LJ 171, 175 [2002] ). And this occurs quite regularly throughout New York State (see e.g., People v. Wilson , 32 N.Y.3d 1, 84 N.Y.S.3d 393, 109 N.E.3d 542, 2018 WL 2974446, 2018 N.Y. Slip Op. 043802018 [2018] [defendant tried and convicted of assaulting partner, notwithstanding fact that the partner could not cooperate with the prosecution because she was "gravely-injured" and "brain-damaged"]; People v. Walker , 153 A.D.3d 861, 60 N.Y.S.3d 351 [2nd Dept. 2017] [defendant was tried and convicted of assaulting and strangling his partner, notwithstanding the partner's refusal to cooperate with the prosecution); People v. Byrd , 51 A.D.3d 267, 855 N.Y.S.2d 505 [1st Dept. 2008] [defendant was tried and convicted of assaulting partner, even though the partner refused to cooperate with the prosecution]; and People v. Jernigan, 41 A.D.3d 331, 838 N.Y.S.2d 81 [1st Dept. 2007] [defendant was tried and convicted of "brutally" slashing his former girlfriend with a razor, notwithstanding the girlfriend's refusal to cooperate with the prosecution]; see also Bridging the Gap Between the Rules of Evidence and Justice for Victims of Domestic Violence at 368 ["Increasingly, [district attorney] offices are using a ‘no drop’ policy in which the [domestic violence] case will continue as long as there is some other evidence with which to present the case"] ).
Notably, the QDAO's treatment of defendant's case is also consistent with its treatment of Monserrate's case almost ten years earlier: Monserrate faced prosecution and defendant still faces prosecution despite the complainants' refusal to cooperate. This too undercuts defendant's claim the she has been unfairly singled out. Indeed, it appears to the Court that defendant's complaints herein are actually with the QDAO's policies themselves, as opposed to any unfair manner in which the policies have been applied to her particular case. Disagreement with a District Attorney's policies, of course, is not a sufficient ground upon which to grant defendant's motion for disqualification.
Monserrate, of course, was convicted after trial and his conviction was later upheld on appeal (People v. Monserrate, 90 A.D.3d 785, 934 N.Y.S.2d 485 [2d Dept. 2011] ).
Finally, notwithstanding the absence of any showing of actual prejudice or a substantial risk of prejudice, defendant seeks to disqualify the district attorney by virtue of a supposed "appearance of impropriety" created by her lawsuits against the QDAO and members of the Domestic Violence Bureau, claiming that the litigation served to "undermine public confidence in the evenhandedness of the criminal justice process." This Court disagrees and finds that defendant's filing of a lawsuit against the QDAO and staff members in their individual and official capacities, does not raise an "appearance of impropriety" in this prosecution sufficient to warrant the disqualification of the District Attorney (see Matter of Soares v. Herrick , 20 N.Y.3d 139, 957 N.Y.S.2d 664, 981 N.E.2d 260 [2012] ).
In Soares , the District Attorney of Albany County obtained an indictment against five individuals for the sale of steroids, but the defendants successfully moved to dismiss four successive indictments against them. When the fourth indictment was dismissed without leave to re-present, the People appealed and the Appellate Division reversed, finding that leave to re-present should have been granted ( People v. Loomis , 70 A.D.3d 1199, 896 N.Y.S.2d 208 [3d Dept. 2010] ). During the pendency of the appeal, however, the defendants had filed a civil suit in federal court claiming that the district attorney had violated their constitutional rights. When the defendants, after the filing of the civil lawsuit against the district attorney, later moved to dismiss the fifth indictment which had been obtained, the County Court not only dismissed it with leave to re-present, but disqualified the district attorney from prosecuting the matter and appointed a Special District Attorney, finding "a demonstrable potential for prejudice and ... a personal, professional and financial stake [on the part of the district attorney] in the outcome of both the civil and criminal case" ( Matter of Soares v. Herrick , 88 A.D.3d 148, 153, 928 N.Y.S.2d 386 [3d Dept. 2011], affirmed 20 N.Y.3d 139, 957 N.Y.S.2d 664, 981 N.E.2d 260 [2012] ).
In response to this ruling, the district attorney commenced an Article 78 proceeding to "prohibit enforcement" of the order disqualifying him. The Appellate Division reversed the ruling of the lower court, holding that the "appearance of impropriety, standing alone, may not cause the disqualification of a district attorney" ( id. at 152, 928 N.Y.S.2d 386 ). It further held that public policy supported the reversal of the district attorney's disqualification because "[a]cquiescence to a policy by which a criminal defendant, through the simple expedient of commencing a lawsuit, may effect the removal of a duly elected district attorney and his staff would establish a dangerous precedent that is wholly unwarranted under the circumstances presented here" ( id. at 154, 928 N.Y.S.2d 386 ).
The Court of Appeals affirmed the decision of the Third Department, holding that the authority "to displace a duly elected district attorney ... should not be expansively interpreted" ( Soares , 20 N.Y.3d at 145, 957 N.Y.S.2d 664, 981 N.E.2d 260 ). It found that there was "no record support for the conclusion that the defendants suffered actual prejudice or any risk thereof in connection with the [district attorney's] prosecution of the case," citing the lack of evidence of malfeasance, bad faith, or an improper motive on the part of the district attorney ( id. at 146, 957 N.Y.S.2d 664, 981 N.E.2d 260 ). It further found that the conflict of interest arising from the civil lawsuit and the resultant "potential for prejudice" ( id. ) did not, by itself, warrant the removal of the district attorney.
The holding of Soares disposes of defendant's civil-lawsuit claim here. Of course, if the filing of a civil lawsuit by a defendant against the District Attorney during the pendency of a criminal prosecution does not give rise to an appearance of impropriety in the pending prosecution, then a fortiori, the filing of a civil lawsuit against the District Attorney eight or nine years prior to the criminal prosecution cannot give rise to the appearance of impropriety. Here, the civil litigation against the individual prosecutors relating to their interrogation of defendant Barba in the Monserrate case concluded nearly six years ago (see Giraldo v. Kessler , 694 F.3d 161 [2d Cir. 2012] ), and defendant has proffered no evidence whatsoever that the QDAO still has some axe to grind with her. Nor has defendant presented any evidence of bad faith, malfeasance, or an improper motive on the part of the prosecution.
Furthermore, the Second Circuit decision in Giraldo all but vindicated the QDAO's prosecutors handling of the interrogation of defendant in the Monserrate matter, specifically finding that because Barba/Giraldo was such an "important witness" in the case against Monserrate, her interrogation by the prosecutors was "an integral part of [the prosecutors'] advocacy function," and that the ADAs' conduct was "well within their legitimate function as prosecutors" ( Giraldo at 167 ). Given that vindication, which resulted in the dismissal of the civil lawsuit against the prosecutors almost six years ago, it is difficult to discern, short of purely speculating, what residual personal resentment against defendant may still exist in the QDAO, if any ever existed at all. There is no evidence of lingering "bad blood" here — at least not on the part of the People — and the Court finds that, given the particular circumstances of this case, there is not even an "appearance of impropriety." The Court notes that despite the fact that there has been no showing of actual prejudice in this matter, the People, apparently in an effort to avoid the slightest semblance of impropriety, have nevertheless assigned to prosecute this case only prosecutors who were not employed by the QDAO during the Monserrate litigation. These assigned prosecutors, of course, were neither named in the seven-year old civil lawsuit, nor were part of the QDAO when defendant Barba filed the lawsuit or refused to cooperate with the Monserrate prosecution. Likewise, the People assigned to oversee the defendant's case a supervisor who had no connection to the Monserrate prosecution.
The absence of the appearance of impropriety aside, there are public policy reasons to reject defendant's civil-lawsuit claim. As the Appellate Division stated in Soares : "[a]cquiescence to a policy by which a criminal defendant, through the simple expedient of commencing a lawsuit, may effect the removal of a duly elected district attorney and his staff would establish a dangerous precedent that is wholly unwarranted under the circumstances presented here" ( 88 A.D.3d at 154, 928 N.Y.S.2d 386 ).
* * * *
In short, defendant has failed to establish "actual prejudice," a substantial risk of prejudice or the "appearance of impropriety" sufficient to warrant disqualification of the District Attorney and the assignment of a special prosecutor.
Accordingly, for the reasons stated above, defendant's motion is denied in its entirety.
This constitutes the decision and order of the Court.