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THE TRANSFER OF DEFENDANT’S CASE TO A SPECIAL PROSECUTOR WAS JUSTIFIED BY THE EXPLANATION OF A CONFLICT WITHIN THE DA’S OFFICE; HOWEVER, THE TRANSFER BACK TO THE DA’S OFFICE WAS NOT BASED ON AN EXPLANATION WHY THE CONFLICT WAS NO LONGER A PROBLEM; THE TRANSFER BACK TO THE DA’S OFFICE WAS REVERSIBLE ERROR (THIRD DEPT). ​

The Third Department, in a full-fledged opinion by Justice Pritzker, reversing County Court, determined the prosecution of defendant’s case should not have been transferred from the special prosecutor, appointed two months before because of a conflict within the DA’s office, back to the DA’s office. The Third Department noted that the initial decision to appoint a special prosecutor based on a conflict was supported by the application, but there was no explanation why that conflict no longer existed such that the DA’s office could ultimately handle the case:

County Law § 701 does not specifically detail the procedure to be followed when a special prosecutor is relieved of his or her appointment, and there is little case law relevant to this issue …; however, it is apparent that the only options are to either appoint another special prosecutor or to return the matter, if appropriate, to the DA’s office. Indeed, certain policy considerations weigh in favor of allowing the DA’s office to prosecute the case, namely, a “public interest in having prosecutorial duties performed, where possible, by the constitutional officer chosen by the electorate” … . Here, however, the DA’s office had, less than two months prior, sought appointment of a special prosecutor based upon a conflict. Based upon this sworn assertion of a conflict, County Court (Lambert, J.) entered an order disqualifying the DA’s office and appointing the special prosecutor. Then, when subsequently returning the matter to the disqualified DA’s office, no record was made as to why disqualification was no longer necessary. From the scant record of what occurred here, it is clear that defendant’s concerns regarding the DA’s office’s prior disqualification and possible conflict fell on deaf ears. Thus, because on this record we cannot determine why County Court (Burns, J.) deemed it appropriate to no longer disqualify the DA’s office, we find that the court committed reversible error in returning the matter to the DA’s office … . People v Faison, 2024 NY Slip Op 01836, Third Dept 4-4-24

Practice Point: Just as the transfer of a criminal prosecution from the DA’s office to a special prosecutor based upon a conflict within the DA’s office requires a valid explanation, the transfer of the criminal prosecution from the special prosecutor back to the DA’s office requires a valid explanation why the conflict is no longer a problem. Here the absence of an explanation rendered the transfer back to the DA’s office reversible error.

 

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