THE DISTRICT ATTORNEY SHOULD NOT HAVE BEEN DISQUALIFIED FROM PROSECUTING THE DEFENDANT FOR ALLEGED SEX OFFENSES ON THE GROUND THAT, AS A FAMILY COURT JUDGE, THE DISTRICT ATTORNEY HAD PRESIDED OVER FAMILY COURT PROCEEDINGS INVOLVING THE DEFENDANT AND THE ALLEGED VICTIM OF THE CHARGED SEX OFFENSES (THIRD DEPT).

The Third Department, reversing County Court, determined petitioner, the county district attorney, should not have been disqualified from prosecuting Jamel Brandow for sex offense charges on the ground that, as a Family Court judge, the district attorney had presided over Family Court proceedings against Brandow which also involved the alleged victim of the current charges:

Pursuant to Judiciary Law § 17, a former judge “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” … . Here, contrary to respondent’s determination, the underlying criminal matter was not in any way before petitioner in his former judicial capacity. Although petitioner presided over proceedings brought against Brandow in Family Court in 2008, the matters litigated in those proceedings bear no similarity to the allegations of sexual misconduct charged in the indictment … . Further, although petitioner determined that Brandow violated an order of protection issued in favor of the victim and others, the violation did not arise out of any contact between Brandow and the victim. Accordingly, as the underlying criminal matter was not previously before petitioner in his judicial capacity, Judiciary Law § 17 does not prohibit petitioner’s prosecution of the subject criminal charges … . Matter of Czajka v Koweek, 2020 NY Slip Op 07009, Third Dept 11-25-20