| People v Zinkhen |
| 2011 NY Slip Op 08502 [89 AD3d 1319] |
| November 23, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Thomas Zinkhen,Appellant. |
—[*1] D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), forrespondent.
Malone Jr., J. Appeal from a judgment of the County Court of Ulster County (Milano, J.),rendered October 1, 2009, upon a verdict convicting defendant of the crimes of burglary in the seconddegree, grand larceny in the fourth degree, criminal possession of stolen property in the fourth degree,forgery in the second degree and petit larceny.
In 2009, defendant was charged in an indictment with burglary in the second degree, grand larcenyin the fourth degree, criminal possession of stolen property in the fourth degree, forgery in the seconddegree and petit larceny. He thereafter moved for an order dismissing the indictment on the ground thatactual prejudice, inherent impropriety and a conflict of interest arose from the fact that the UlsterCounty District Attorney had previously represented him while the District Attorney was a member ofthe Public Defender's office. Alternatively, defendant requested that the District Attorney's office bedisqualified and a special prosecutor be appointed. County Court denied the motion and, following atrial, the jury convicted defendant as charged. County Court sentenced defendant, as a prior violentfelony offender, to concurrent prison terms resulting in an aggregate sentence of 12 years, to befollowed by five years of postrelease supervision. Defendant now appeals.
We affirm. Defendant's sole contention on appeal is that County Court erred in denying [*2]his motion to have the indictment dismissed or the District Attorney'soffice disqualified based upon a conflict of interest. Generally, a public prosecutor should be removed"only to protect a defendant from actual prejudice arising from a demonstrated conflict of interest or asubstantial risk of an abuse of confidence" (Matter of Schumer v Holtzman, 60 NY2d 46, 55[1983]; accord People v Arbas, 85AD3d 1320, 1322 [2011], lv denied 17 NY3d 813 [2011]). Here, defendant neitheralleges any actual prejudice due to the prior representation nor provides any proof of actual prejudiceor "a substantial risk of an abuse of confidence" (Matter of Schumer v Holtzman, 60 NY2d at55), despite being provided access to the Public Defender's case file regarding the previousrepresentation. Without such proof, we are left with an inference of impropriety, which is not enough onits own to require County Court to dismiss the indictment or disqualify the District Attorney's office (see People v Terk, 24 AD3d 1038,1041 [2005]; People v Vanderpool, 217 AD2d 716, 718 [1995], lv denied 86 NY2d847 [1995]).
Mercure, J.P., Peters, Kavanagh and Stein, JJ., concur. Ordered that the judgment is affirmed.