DEFENDANT ALLEGED A PROSECUTOR WHO PARTICIPATED IN HIS PROSECUTION HAD REPRESENTED AN ACCOMPLICE IN THE SAME CRIME; DEFENDANT WAS ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant was entitled to a hearing on his motion to vacate his conviction. The defendant alleged a prosecutor, Vecchione, participated in his prosecution after having represented a codefendant, Bobb, in the same matter:

A prosecutor’s “paramount obligation is to the public” … , and “a defendant, as an integral member of the body politic, is entitled to a full measure of fairness” from that public officer … . Here, the defendant asserts, among other things, that Vecchione was in a position to use privileged information learned through prior representation of the defendant’s accomplice in the crime charged, thus giving the People an unfair advantage in the defendant’s case … . Generally, a public prosecutor should not be removed from prosecuting a case “unless necessary to protect a defendant from ‘actual prejudice arising from a demonstrated conflict of interest or a substantial risk of an abuse of confidence'” … . “[T]he appearance of impropriety, standing alone, might not be grounds for disqualification” … .

Under the particular circumstances of this case, in which evidence was presented suggesting that Vecchione was directly involved in the defendant’s prosecution after having represented his accomplice in the charged crime … , questions of fact existed as to whether the defendant suffered “actual prejudice or a substantial risk of an abused confidence” so as to warrant vacatur of his conviction … . People v Breedan, 2021 NY Slip Op 02173, Second Dept 4-7-21