| People v Giroux |
| 2014 NY Slip Op 08060 [122 AD3d 1063] |
| November 20, 2014 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vStephen A. Giroux, Appellant. |
Sandra M. Colatosti, Albany, for appellant.
Andrew J. Wylie, District Attorney, Plattsburgh (Nicholas J. Evanovich of counsel),for respondent.
Garry, J. Appeal from a judgment of the County Court of Clinton County (McGill,J.), rendered May 24, 2010, upon a verdict convicting defendant of the crimes of criminalsale of a controlled substance in the third degree and criminal possession of a controlledsubstance in the third degree.
Defendant was charged with one count each of criminal sale of a controlledsubstance in the third degree and criminal possession of a controlled substance in thethird degree arising out of his sale of cocaine to a police informant. Defendant thereaftermoved for the disqualification of the Clinton County District Attorney and theappointment of a special prosecutor on the grounds that the District Attorney hadpreviously represented him in several criminal and domestic relations matters and hadobtained potentially prejudicial confidential information. County Court denieddefendant's motion. Defendant was ultimately convicted as charged following a jury trial,and now appeals.
Defendant's sole contention upon appeal is that County Court erred in denying hismotion for a special prosecutor, because the District Attorney had previously representedhim on driving while intoxicated charges and various domestic relations matters and,while acting in that capacity, had obtained confidential information that created asubstantial risk of prejudice with regard to the drug charges. The District Attorneyadmittedly had, in the course of his prior private practice, been associated with a law firmthat had represented defendant in some matters. However, the District Attorney assertedthat he had not served as defendant's primary attorney, and that his involvement indefendant's representation was significantly limited; he stated that he had not obtainedany confidences or information, and had no recollection of any privilegedcommunications with defendant or conversations relative to any alleged use of drugs oralcohol abuse. In sum, the District Attorney denied having obtained any confidentialinformation that could be prejudicial to defendant in the pending prosecution.
Ordinarily, "[a] public prosecutor should be removed only to protect a defendantfrom actual prejudice arising from a demonstrated conflict of interest or a substantial riskof an abuse of confidence" (People v Zinkhen, 89 AD3d 1319, 1320 [2011], lvdenied 18 NY3d 964 [2012] [internal quotation marks and citations omitted]; seeMatter of Schumer v Holtzman, 60 NY2d 46, 55 [1983]; People v Terk, 24 AD3d1038, 1041 [2005]). Here, the fact that the District Attorney may have previouslyrepresented defendant in prior, unrelated criminal matters, without more, does not requirehis disqualification (see People v Vanderpool, 217 AD2d 716, 718 [1995], lvdenied 86 NY2d 847 [1995]; People v Early, 173 AD2d 884, 885 [1991],lv denied 79 NY2d 1000 [1992]). Further, although the District Attorney soughtto impeach defendant using prior contempt convictions arising from marital problemsthat defendant alleges he had discussed with the District Attorney, County Court's refusalto allow any inquiry into the underlying facts of these convictions eliminated anypossible avenue by which the District Attorney might have utilized any confidentialinformation that he may have acquired (see People v Rankin, 149 AD2d 987, 987[1989]). As 16 years had passed since any such alleged confidences had been shared, thepassage of time had also diminished the risk of prejudice (see People v Martin, 2 AD3d1336, 1337 [2003], lv denied 1 NY3d 630 [2004]; People vVanderpool, 217 AD2d at 718). As defendant did not demonstrate a substantial riskof an abuse of confidence or any actual prejudice, we find no error in County Court'sdetermination (see People v Zinkhen, 89 AD3d at 1320; People v Arbas, 85 AD3d1320, 1322 [2011], lv denied 17 NY3d 813 [2011]).
Stein, J.P., McCarthy, Lynch and Devine, JJ., concur. Ordered that the judgment isaffirmed.