Opinion
IND. No. 8607/06
09-06-2007
THE PEOPLE OF THE STATE OF NEW YORK v. JOHN FOX, Defendant.
DECISION AND ORDER
JILL KONVISER, JUSTICE:
The defendant has filed a motion to disqualify Assistant District Attorney Anna-Sigga Nicolazzi from prosecuting the case against him at trial. The defendant asserts that disqualification is required as he seeks to call Ms. Nicolazzi as a witness regarding conversations that she had with police witnesses concerning the time the defendant made his first statements at the 61st precinct on October 10, 2006. The People oppose the defendant's motion. For the reasons that follow, the motion to disqualify Ms. Nicolazzi is denied.
The defendant's motion to suppress his statements and his identification was denied on August 27, 2007.
The Defendant's Motion
The defendant seeks to call Ms. Nicolazzi as a trial witness to support his claim that Detectives Byrnes and Cennamo testified falsely at the pre-trial suppression hearing when they testified that the defendant made his first confession at approximately 3:30 a.m. on October 10, 2006, while inside of the 61st precinct. Instead, the defendant asserts that his confession did not take place until several hours later, at approximately 8:30 or 9:00 a.m., and only after the detectives yelled at him for several hours and deprived him of food and Miranda warnings.
The defendant does not contend that Ms. Nicolazzi was present at the 61st precinct at the time this first statement was made. Nor does he assert that she has any personal, first-hand knowledge with respect to the timing of that statement. Rather, in an attempt to undermine the credibility of the police witnesses, the defendant seeks to question Ms. Nicolazzi regarding any conversations she may have had with police witnesses with respect to the timing of the defendant's first statement.
The defendant does not seek to disqualify Ms. Nicolazzi on the ground that she later obtained the defendant's videotaped confession. See Defendant's Motion at 6 ("It must be emphasized that the defendant does not move to disqualify ADA Nicolazzi because she is the person who secured the videotaped confession.")
As the defendant wishes to call Ms. Nicolazzi as his witness at trial on this one precise matter, he contends that she should be disqualified from prosecuting the case. See People v. Paperno, 54 N.Y.2d 294 (1981).
The People's Response
The People, by way of an affirmation and memorandum of law prepared by Ms. Nicolazzi, oppose the defendant's motion. Ms. Nicolazzi asserts in her affirmation, inter alia:
On October 10, 2006, the first contact I had with anyone regarding defendant was with Detective Frank Byrnes. He called me at approximately 5:08 a.m. He informed me that defendant was at the 61st precinct and had made both an oral and written statement implicating himself in the crimes
committed against Michael Sandy. We discussed what the defendant had said. We also discussed the taking of a video-taped statement. I told him I would notify the Homicide Rider and then get back to him.
People's Affirmation at 1-2.
In addition, attached as an exhibit to Ms. Nicolazzi's affirmation are copies of cellular telephone records that purportedly show that she received a telephone call from the 61st precinct at approximately 5:08 a.m. on October 10, 2006.
The People assert that the disqualification motion should be denied as testimony from Ms. Nicolazzi would be inconsistent with the defendant's claim that his first statement was made at approximately 8:30 or 9:00 a.m. on October 10, 2006.
Conclusions of Law
The law is well settled that for a prosecutor to be disqualified from representing the People at trial, a defendant is required to make "a significant showing that the prosecutor's prior investigative or prosecutorial conduct will be a material issue at the trial." People v. Paperno, 54 N.Y.2d 294, 296 (1981); see People v. Cannady, 243 A.D.2d 642 (2d Dept. 1997), lv. denied, 91 N.Y.2d 889 (1998); Morgenthau v. Altman, 207 A.D.2d 685 (1st Dept. 1994), lv. denied, 84 N.Y.2d 812 (1995). In this case, the defendant does not seek to question the prosecutor with respect to her conduct. Rather, the defendant seeks to elicit testimony from her about what police personnel may have told her with respect to the time they first obtained a statement from the defendant. As no "significant showing" has been made that the investigative or prosecutorial actions taken by the prosecutor will be a material issue at trial, the defendant's motion to disqualify Ms. Nicolazzi is denied.
The defendant's motion is denied for the additional reason that he has not shown that the prosecutor will testify in a manner adverse to the People as he has not shown that the prosecutor's testimony would support his position that the first statement was taken at approximately 8:30 or 9:00 a.m. on October 10, 2006. See People v. Panerno, 54 N.Y.2d at 298; People v. Wilhelm, 34 A.D.3d 40, 54 (3d Dept. 2006); People v. Williams, 231 A.D.2d 751 (2d Dept. 1996); People v. Cosentino, 7 Misc.3d 1022(A), 2005 WL 1130241 (Sup. Ct. Queens Co. May 12, 2005) (Rotker, J.).
The defendant has not claimed that the prosecutor should be disqualified due to the unsworn witness rule. See People v. Paperno, 54 N.Y.2d at 300.
The defendant's motion to disqualify Ms. Nicolazzi from prosecuting this case is denied. Further, the defendant's request to call Ms. Nicolazzi as a defense witness with respect to the issues raised herein is also denied.
This constitutes the Decision and Order of the Court. Dated: Brooklyn, New York
September 6, 2007
/s/_________
J.S.C.