| Matter of Czajka v Koweek |
| 2012 NY Slip Op 07365 [100 AD3d 1136] |
| November 8, 2012 |
| Appellate Division, Third Department |
| In the Matter of Paul Czajka, as Columbia County DistrictAttorney, Petitioner, v Richard Koweek, as County Judge of Columbia County,Respondent, and Nicholas Fox, Respondent. |
—[*1] John M. Leonardson, Conflict Defender, Hudson, for Nicholas Fox, respondent.
Egan Jr., J. Proceeding pursuant to CPLR article 78 (initiated in this Court pursuant to CPLR506 [b] [1]) to prohibit respondent County Judge of Columbia County from enforcing an orderwhich, among other things, disqualified petitioner and his staff from further prosecuting acriminal case against respondent Nicholas Fox and appointed a special district attorney.
A defendant in a criminal case should not find himself or herself in the unenviable positionof being prosecuted by the former judge who had earlier presided over the case. Judiciary Law§ 17 bars such a practice and petitioner's application should be dismissed.
In April 2010, respondent Nicholas Fox was charged with various crimes in ColumbiaCounty. Petitioner, then a County Judge of Columbia County, thereafter presided over certainpreliminary aspects of Fox's criminal case, including the initial arraignment, the subsequentarraignment upon the superceding indictment, a motion by the Columbia County Public [*2]Defender's office to disqualify itself and the unsealing of a searchwarrant. In May 2011, petitioner resigned from the bench to seek the office of District Attorneyof Columbia County and, in November 2011, was duly elected to that position. Accordingly,upon taking office in January 2012, petitioner assumed responsibility for Fox's criminalprosecution.
In May 2012, Fox moved before petitioner's successor, respondent Richard Koweek, asCounty Judge of Columbia County (hereinafter respondent), seeking to disqualify petitioner andhis staff and to appoint a special district attorney. Respondent granted Fox's application, findingthat Judiciary Law § 17 mandated petitioner's disqualification as a matter of law andappointed the District Attorney of Greene County as special district attorney in the underlyingcriminal proceeding. Petitioner thereafter commenced this proceeding pursuant to CPLR article78 seeking to vacate respondent's order of disqualification.[FN1]
Preliminarily, to the extent that Fox contends that respondent's actions are not reviewable inthe context of a CPLR article 78 proceeding in the nature of prohibition, we need note only thatthis very argument was considered and rejected by a majority of this Court in Matter of Soares v Herrick (88 AD3d148, 152 [2011]). Fox's related claim—that petitioner lacks legal capacity tocommence this proceeding—is equally unavailing. To be sure, a district attorney is notexpressly authorized by statute to commence a CPLR article 78 proceeding and, indeed, islimited to exercising only those powers " 'conferred by the Legislature, either expressly or bynecessary implication' " (Matter ofSchmitt v Skovira, 53 AD3d 918, 921 [2008], quoting Czajka v Breedlove, 200AD2d 263, 265 [1994], lv denied 84 NY2d 809 [1994]; see Matter of Schermerhorn v Becker,64 AD3d 843, 845-846 [2009]). However, County Law § 700 (1) provides, in relevantpart, that "it shall be the duty of every district attorney to conduct all prosecutions for crimes andoffenses cognizable by the courts of the county for which he or she shall have been elected orappointed." To our analysis, the capacity to commence a proceeding against a body or officerwho frustrates the discharge of that statutory duty may be inferred by necessary implication(see generally Silver v Pataki, 96 NY2d 532, 537 [2001]; Matter of People v Christensen, 77AD3d 174, 187-188 [2010]; Matterof Town of Riverhead v New York State Dept. of Envtl., 50 AD3d 811, 812 [2008]).
Nor are we persuaded that this Court lacks personal jurisdiction over Fox due to certainalleged defects in service. Simply put, Fox subjected himself to the jurisdiction of this Court bymoving to intervene in this proceeding (compare Jacobs v Jacobs, 229 AD2d 712, 714[1996]) and lacks standing to challenge the propriety of the service effectuated upon respondent(see generally Matter of DefreestvilleArea Neighborhoods Assn., Inc. v Tazbir, 23 AD3d 70, 73 [2005], lv denied 5NY3d 711 [2005]; Home Sav. of Am. v Gkanios, 233 AD2d 422, 423 [1996]). Finally, asthere has been no showing that the District Attorney of Greene County may be inequitablyaffected by the outcome of this proceeding or that complete relief cannot be accorded to theparties in his absence (see CPLR 1001 [a]), the failure to join him as a party does notcompel dismissal.
Turning to the merits, the relevant inquiry is not—as petitionersuggests—whether he is[*3]"compromised in the potentialvigor with which he will represent the People" in the criminal prosecution against Fox or,alternatively, "whether he is possessed of privileged information" that would give the People "anunfair advantage" in connection therewith. Rather, the sole question to be resolved by this Courtis whether Judiciary Law § 17 permits petitioner to appear as a district attorney in theunderlying criminal proceeding in the first instance. In our view, he may not.
To be sure, and as this Court previously has acknowledged, a "district attorney is aconstitutional officer, chosen by the electors of his or her county to prosecute all crimes andoffenses, who enjoys wide latitude and discretion to allocate and use both the staff and resourcesof the office in a manner believed to be most effective to the discharge of his or her duties"(Matter of Soares v Herrick, 88 AD3d at 153). Petitioner's status as a constitutionalofficer, however, does not render him immune from the Rules of Professional Conduct or, moreto the point, Judiciary Law § 17, which provides that "[a] judge or surrogate or formerjudge or surrogate shall not act as attorney or counsellor in any action, claim, matter,motion or proceeding, which has been before him [or her] in his [or her] official character"(emphasis added). The statute, to our reading, could not be more clear and plainly operates todisqualify petitioner, who previously presided—as County Judge of ColumbiaCounty—over various aspects of Fox's criminal case, from prosecuting that same matter inhis new capacity as District Attorney of Columbia County. To the extent that petitioner arguesthat "the unique characteristics of the role and duties of a prosecutor" trump the plain languageof—and the ethical and policy considerations underlying—Judiciary Law §17, we are not persuaded. Notably, had the Legislature wished to carve out an exception fordistrict attorneys (or any other constitutional officer, for that matter), it surely could have doneso. Absent such qualifying or limiting language, the statutory prohibition is absolute andmandates petitioner's disqualification as District Attorney in Fox's criminalprosecution.[FN2]
Because we are of the view that Judiciary Law § 17 establishes a bright-linedisqualification rule, we need not consider whether Fox has suffered, or may suffer, any actualprejudice or risk thereof as a result of petitioner's representation of the People or whether, in theabsence of any such prejudice, the mere appearance of impropriety would be sufficient to warrantpetitioner's removal as a matter of law. As the prohibition set forth in Judiciary Law § 17 isabsolute, analysis of these issues is neither required nor appropriate. The parties' remainingcontentions, to the extent not specifically addressed, have been examined and found to be lackingin merit.
Lahtinen, J.P., Stein and Garry, JJ., concur. Adjudged that the petition is dismissed, withoutcosts.
Footnote 1: Respondent elected not toappear (see CPLR 7804 [i]), and this Court subsequently granted Fox's motion tointervene and denied petitioner's application for a stay pending resolution of this proceeding.
Footnote 2: To the extent that petitionerrelies upon this Court's prior decision in Matter of Soares v Herrick and the Court ofAppeals' decision in Matter of Schumer v Holtzman (60 NY2d 46 [1983]), neither ofthose cases dealt with the issue now squarely before us—namely, whether Judiciary Law§ 17, on its face, prohibits petitioner, as a former judge in the underlying criminal action,from now serving as District Attorney in that same matter.