Neither party cites, nor has my own research disclosed, a Second Circuit decision considering a criminal defendant's motion to disqualify the United States Attorney or his staff, or to dismiss an indictment, because of perceived breaches of the Canons of Ethics. On the criminal side, Newman relies upon United States v. Catalanotto, 468 F. Supp. 503 (D.Ariz. 1978), and People v. Shinkle, 51 N.Y.2d 417, 434 N.Y.S.2d 918, 415 N.E.2d 909 (1980). The Government calls my attention to United States v. Caggiano, 660 F.2d 184 (6th Cir. 1981).

For the foregoing reasons, the defendant's motion to vacate the judgment is hereby granted and a new trial is ordered. "The Court of Appeals has established that when a defense attorney who represents a defendant during the initial stages of a criminal proceeding becomes employed by the District Attorney's office that is prosecuting the defendant's ongoing case, the defendant and the public are given "the unmistakable appearance of impropriety and [the situation] create[s] the continuing opportunity for abuse of confidences entrusted to the attorney during the months of his [or her] active representation of defendant" (People v. Good, 62 AD3d 1041 [App. Div., 3rd Dept. 2009] (same as in original), leave to appeal denied, 18 NY3d 802 [2011], citing People v. Shinkle, 51 NY2d 417, 420 [1980]). As it has been explained, disqualification and reversal is required in instances where the "'risk of prejudice attendant on [the] abuse of confidence, however slight" . . . "is necessary to prevent situations in which former clients must depend on the good faith of their former lawyers turned adversaries to protect and honor confidences shared during the now extinct relationship.

For the foregoing reasons, the defendant's motion to vacate the judgment is hereby granted and a new trial is ordered. “The Court of Appeals has established that when a defense attorney who represents a defendant during the initial stages of a criminal proceeding becomes employed by the District Attorney's office that is prosecuting the defendant's ongoing case, the defendant and the public are given ‘the unmistakable appearance of impropriety and [the situation] create[s] the continuing opportunity for abuse of confidences entrusted to the attorney during the months of his [or her] active representation of defendant’ ” (People v. Good, 62 A.D.3d 1041, 877 N.Y.S.2d 766 [App.Div., 3rd Dept.2009] (same as in original), leave to appeal denied, 18 N.Y.3d 802, 2011 WL 6350548 [2011], citing People v. Shinkle, 51 N.Y.2d 417, 420, 434 N.Y.S.2d 918, 415 N.E.2d 909 [1980] ). As it has been explained, disqualification and reversal is required in instances where the “ ‘risk of prejudice attendant on [the] abuse of confidence, however slight’ ” ... “is necessary to prevent situations in which former clients must depend on the good faith of their former lawyers turned adversaries to protect and honor confidences shared during the now extinct relationship.

The defendant has moved pursuant to CPL 440.10 to vacate his judgment entered on September 8, 1992 on the grounds that it was obtained in violation of his right to counsel as guaranteed under the Federal and State Constitutions. The gravamen of defendant's contention is that, since his trial attorney was throughout the proceeding also the Village Prosecutor for the Village of Blasdell, his right to counsel was violated pursuant to People v Shinkle ( 51 N.Y.2d 417), People v Cooper ( 156 Misc.2d 483) and the New York State Bar Association Committee on Professional Ethics (1982 Opns N Y St Bar Assn Comm on Prof Ethics No. 544). FINDINGS OF FACT

We agree. It is well established that a criminal defendant's right to counsel is violated when a defense attorney who actively participated in the preliminary stages of the defendant's defense becomes employed as an assistant district attorney by the office that is prosecuting the defendant's ongoing case (seePeople v. Shinkle, 51 N.Y.2d 417, 420–421, 434 N.Y.S.2d 918, 415 N.E.2d 909 [1980] ; People v. Good, 62 A.D.3d 1041, 1042, 877 N.Y.S.2d 766 [3d Dept. 2009] ; People v. Gaines, 277 A.D.2d 900, 900, 716 N.Y.S.2d 207 [4th Dept. 2000] ; see alsoPeople v. Herr, 86 N.Y.2d 638, 641, 635 N.Y.S.2d 159, 658 N.E.2d 1032 [1995] ). In those circumstances, the defendant and the public are given "the unmistakable appearance of impropriety and [the situation] create[s] the continuing opportunity for abuse of confidences entrusted to the attorney during the [period] of his [or her] active representation of defendant" ( Shinkle, 51 N.Y.2d at 420, 434 N.Y.S.2d 918, 415 N.E.2d 909 ; seeGood, 62 A.D.3d at 1042, 877 N.Y.S.2d 766 ; Gaines, 277 A.D.2d at 900–901, 716 N.Y.S.2d 207 ).

Id. In People v. Shinkle, 51 N.Y.2d 417, 415 N.E.2d 909, 434 N.Y.S.2d 918 (1980), the Court of Appeals of New York vacated a defendant's conviction because the attorney who had represented him in the beginning stages of the case subsequently joined the prosecutor's office and remained there during the course of the trial. The court so held, despite the fact that "means were designed and scrupulously pursued to insulate" the defendant's former counsel from prosecution of the case.

d none of defendant's counsels objected to the continued prosecution by the Broome County District Attorney's office so as to preserve this contention for appellate review ( see People v Krom, 91 AD2d 39, 46-47, affd on other grounds 61 NY2d 187; see also People v Gaines, 277 AD2d 900, 900; accord People v Bump, 103 AD2d 974, 975), we deem it appropriate to exercise our interest of justice power to reverse defendant's conviction ( see CPL 470.15 [c]; People v Gaines, 277 AD2d at 900). The Court of Appeals has established that when a defense attorney who represents a defendant during the initial stages of a criminal proceeding becomes employed by the District Attorney's office that is prosecuting the defendant's ongoing case, the defendant and the public are given "the unmistakable appearance of impropriety and [the situation] create[s] the continuing opportunity for abuse of confidences entrusted to the attorney during the months of his [or her] active representation of defendant" ( People v Shinkle, 51 NY2d 417, 420; People v Gaines, 277 AD2d at 900-901; see also People v Abar, 99 NY2d 406, 410; People v English, 88 NY2d 30, 33-34; People v Herr, 86 NY2d 638, 641; Matter of Schumer v Holtzman, 60 NY2d 46, 55). The rule requiring disqualification when there is a "risk of prejudice attendant on [the] abuse of confidence, however slight" ( People v Shinkle, 51 NY2d at 421), "is necessary to prevent situations in which former clients must depend on the good faith of their former lawyers turned adversaries to protect and honor confidences shared during the now extinct relationship.

See, People v Nelson, 167 Misc.2d 665, 668 [City Court, City of New York, 1995]; People v Wyatt, 140 Misc.2d 69, 73 [City Ct, Bronx County, 1988]; 1 Criminal Procedure in New York, Jurisdiction - Local criminal courts § 1:9 (2d); Handling a Criminal Case in New York, Prosecutor: the district attorney - Special prosecutor § 1:12 (While a superior court must appoint, a lower court may disqualify). A court may not lightly undertake to disqualify a district attorney, since "a constitutional officer chosen by the electorate and whose removal by a court implicates separation of powers considerations." People v Jaquish, 18 Misc.3d 302, 304 [Essex County Ct 2007], quoting, People v. Nelson, 167 Misc.2d 665, 647 N.Y.S.2d 438; see also, People v. Zimmer, 51 N.Y.2d 390, 434 N.Y.S.2d 206, 414 N.E.2d 705; People v. Shinkle, 51 N.Y.2d 417, 434 N.Y.S.2d 918, 415 N.E.2d 909).

The Court has considered the affidavits of the defendant sworn to July 13, 2006 and May 11, 2007. A court may not lightly undertake to disqualify a district attorney, "a constitutional officer chosen by the electorate and whose removal by a court implicates separation of powers considerations" ( People v. Nelson, supra at 665, 647 NYS2d at 438; see also People v. Zimmer, 51 NY2d 434 NYS2d 206 414 NE2d 705; People v. Shinkle, 51 NY2d 417, 434 NYS2d 918, 415 NE2d 909). "The 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 or a substantial risk of an abuse of confidence (e.g., People v. Zimmer, 51 NY2d 390, 434 NYS2d 206, 414 NE2d 705, supra; People v. Shinkle, 51 NY2d 417, 421, 434 NYS2d 918, 415 NE2d 909) and the appearance of impropriety, standing alone, might not be grounds for disqualification" ( Schumer v. Holtzman, 60 NY2d 46, 55, 467 NYS2d 182, 186, 454 NE2d 522, 526).

The People rely on the following authorities: People v Keeton (supra); Matter of Schumer v Holtzman ( 60 N.Y.2d 46 [1983]); People v Shinkle ( 51 N.Y.2d 417 [1980]); Matter of Hynes v Demarest ( 202 A.D.2d 669 [2d Dept 1994]); Matter of Holtzman v Hellenbrand ( 130 A.D.2d 749 [2d Dept 1987]). THE LEGAL ANALYSIS