| Matter of Patel v Breslin |
| 2007 NY Slip Op 09482 [45 AD3d 1240] |
| November 29, 2007 |
| Appellate Division, Third Department |
| In the Matter of Sweta Patel, Petitioner, v Thomas A. Breslin, asCounty Judge of Albany County, et al., Respondents. |
—[*1] P. David Soares, District Attorney, Albany (Christopher D. Horn of counsel), for P. DavidSoares, respondent.
Mercure, J.P. Proceeding pursuant to CPLR article 78 (initiated in this Court pursuant toCPLR 506 [b] [1]) to prohibit respondent Albany County Judge from enforcing an order whichdisqualifies petitioner's attorney from representing her in a criminal action due to a conflict ofinterest.
In November 2006, petitioner was charged in an indictment with various counts relating tothe illegal sale of steroids. She retained attorney Phillip Steck, who is also a member of theAlbany County Legislature, to represent her. Thereafter, Steck moved in Albany County Courtfor a determination of whether he was disqualified from representing petitioner based upon NewYork State Bar Association Committee on Professional Ethics Opinion 798 (2006), whichprovides that "[a] lawyer who is a member of a county legislature may not undertake criminalrepresentation in cases involving members of a police department or district attorney's office overwhich the legislature has budget or appointment authority." The court concluded that Steck mustbe permitted to withdraw as counsel, and granted the motion to withdraw. Petitioner thencommenced this CPLR article 78 proceeding seeking a writ of prohibition to prevent CountyCourt from denying her counsel of her choosing.[*2]
"[T]he extraordinary remedy of prohibition lies onlywhere there is a clear legal right" and, with respect to pending criminal proceedings, "only whena court exceeds its jurisdiction or authorized power in such a manner as to implicate the legalityof the entire proceeding, as for example, the prosecution of a crime committed beyond thecounty's geographic jurisdiction" (Matter of Rush v Mordue, 68 NY2d 348, 352, 353[1986]). Prohibition may not be invoked to obtain collateral review of an error of law in apending criminal proceeding; rather, as an extraordinary writ, it lies in the discretion of the courtto address only claims that involve harm that is substantial, implicates a fundamentalconstitutional right, "and where the harm caused by the arrogation of power could not beadequately redressed through the ordinary channels of appeal" (id. at 354 [emphasisadded]; see La Rocca v Lane, 37 NY2d 575, 579-581 [1975], cert denied 424 US968 [1976]). That is, "even if there has been an excess of jurisdiction or power, the extraordinaryremedy will not lie if there is available an adequate remedy at law, of which appeal is but one"(Matter of State of New York v King, 36 NY2d 59, 62 [1975]; see Matter of Lipari vOwens, 70 NY2d 731, 732-733 [1987]). Moreover, while the right to counsel of one's ownchoosing is "constitutionally guaranteed," as petitioner asserts, the right is "qualified" such that adefendant cannot, for example, "employ such right as a means to delay judicial proceedings"(People v Arroyave, 49 NY2d 264, 271 [1980]). More fundamentally, "even if allegederror of constitutional dimension may be involved, prohibition does not lie because the removalof counsel would be reviewable upon direct appeal" (Matter of Lipari v Owens, 70 NY2dat 733; see People v Mackey, 175 AD2d 346, 347-348 [1991], lv denied 78NY2d 969 [1991]; Matter of Barrett v Vogt, 170 AD2d 860, 861 [1991]; see alsoMatter of Kavanagh v Vogt, 58 NY2d 678, 679 [1982]; cf. Matter of Heckstall v McGrath, 15 AD3d 824, 825-826 [2005]).
Peters, Carpinello, Lahtinen and Kane, JJ., concur. Adjudged that the petition is dismissed,without costs.