The People, Respondent,v.Keith A. Adams, Appellant.BriefN.Y.Feb 13, 2013Brief Completed: September 12, 2012 To Be Argued By: Leslie E. Swift Time Requested: 10 Minutes STATE OF NEW YORK COURT OF APPEALS THE PEOPLE OF THE STATE OF NEW YORK, -vs- KEITH A. ADAMS, Respondent, Defendant-Appellant. BRIEF FOR RESPONDENT SANDRA DOORLEY District Attorney of Monroe County Attorney for Respondent By: Leslie E. Swift Senior Assistant District Attorney Suite 832 Ebenezer Watts Building Rochester, New York 14614 Phone: (585) 753-4564 Fax: (585) 753-4576 -i- TABLE OF CONTENTS TABLE OF AUTHORITIES COUNTER-STATEMENT OF THE QUESTION INVOLVED STATEMENT OF THE NATURE OF THE MATTER COUNTER-STATEMENT OF THE FACTS ARGUMENT A. B. C. D. THERE SHOULD BE ANOTHER AFFIRMANCE BECAUSE DEFENDANT WAS PROPERLY REFUSED A SPECIAL PROSECUTOR AS CORRECTLY FOUND BY THE COUNTY APPELLATE COURT. Defendant's lead argument for disqualification, based solely upon an alleged appearance of impropriety given Dixon's employment, is not properly postured for appellate review as it was not the stated basis of either of his disqualification notices of motion. Strict disqualification standard of County Law§ 701 (1) as elucidated by this Court. The lower appeals court correctly found that defendant failed to prove any basis for removal of the DA's Office. The People strenuously oppose the imposition of the per se conflict rule advanced by defendant. Page iii 1 2 3 18 19 21 26 33 E. CONCLUSION -ii- Defendant's moving papers were insufficient to necessitate a hearing. 35 38 -m- TABLE OF AUTHORITIES FEDERAL CASES Lafler v. Cooper, 132 S Ct 1376 (2012) ......................... 27 Missouri v. Frye, 132 S Ct 1399 (2012) ......................... 27 Santobello v. New York, 404 US 257 (1971) ..................... 27 Weatherford v. Bursey, 429 US 545 (1977) ...................... 27 STATE CASES Cowles v. Brownell, 73 NY2d 382 (1989) ..................... 22, 27 Curry v. Hosley, 86 NY2d 470 (1995) ........................ 22, 27 Dondi v. Jones, 40 NY2d 8 (1976) ............................. 24 Haggerty v. Himelein, 89 NY2d 431 (1997) ................ 22, 32, 33 Harvey v. County of Rensselaer, 83 NY2d 917 (1994) .............. 23 Holtzman v. Goldman, 71 NY2d 564 (1988) ...................... 21 Hynes v. Tomei, 92 NY2d 613 (1998) ........................... 27 Johnson v. Pataki, 91 NY2d 214 (1997) ......................... 22 People v. Abrams, 17 NY 3d 760 (2011) ......................... 24 People v. Baker, 99 AD2d 656 (4th Dept 1984) ................ 31, 32 People v. Baumann and Sons Buses, 6 NY3d 404 (2006) . . . . . . . . . . . 20 People v. Carncross, 14 NY 3d 319 (201 0) ....................... 21 -iv- People v. Carter, 77 NY2d 95 (1 990) ........ , ......... 22, 25, 27, 36 People v. Cruz, 55 AD2d 921 (2d Dept 1 997) ..................... 37 People v. DiFalco, 44 NY2d 482 (1 978) ........................ 22 People v. Eboli, 34 NY2d 281 (1974) ........................... 29 People v. English, 88 NY2d 30 (1 996) .......................... 25 People v. Fielding, 158 NY 542 (1899) ....................... 25, 36 People v. Fuller, 57 NY2d 152 (1982) ........................ 22, 27 People v. Gilmour, 98 NY2d 126 (2002) ......................... 21 People v. Gonzalez, 30 Mise 3d 1221 (A) (Kings Co Sup Ct 2011) ..... 34 People v. Gray, 86 NY2d 10 (1985) ............................ 19 People v. Gruden, 42 NY2d 214 (1977) ...................... 35, 36 People v. Herr, 86 NY2d 638 (1995) ............................ 24 People v. Keeton, 74 NY2d 903 (1989) ................... 18, 21,26 People v. Leahy, 72 NY2d 510 (1988) .............. 23, 24, 32, 33, 34 People v. Martin, 50 NY2d 1029 (1980) ......................... 20 People v. Michael, 48 NY2d 1 (1979) ........................... 20 People v. Rickert, 58 NY2d 122 ( 1983) . . . . . . . . . . . . . . . . . . . . . . . . . 22 People v. Rocci, 184 Mise 2d 670 (Utica City Ct 2000) ............. 31 People v. Schrager, 74 Mise 2d 833 (Queens Co Sup Ct 1973) ....... 31 -v- People v. Shinkle, 51 NY2d 417 (1980) ......................... 31 People v. Thomas, 50 NY2d 467 (1980) ......................... 20 People v. Urbaez, 1 0 NY 3d 773 (2008) ...................... 28, 29 Peoplev.Zimmer,51 NY2d390(1980) ................... 24,31,32 Pietra v. State, 71 NY2d 792 (1988) ............................ 24 Schumer v. Holtzman, 60 NY2d 46 (1983) ........ 22, 24, 32, 33, 34, 37 STATUTES County Law 700 (1) ........................................ 22 County Law 701 (1) ............................... 21, 23, 24, 25 CPL 30.30 ............................................... 36 CPL 450.90 (1) ............................................ 20 CPL 460.20 (1) ............................................ 20 CPL 460.50 ............................................... 2 CPL 470.05 (2) ............................................ 20 CPL 470.35 ............................................... 20 NY Canst., Art. XIII, §13 (a) .................................. 21 PL 240.30 (1) .............................................. 2 -1- COUNTER-STATEMENT OF THE QUESTION INVOLVED Should there be a bright-line rule mandating blanket disqualification of an elected District Attorney when the crime victim is a criminal court judge within their jurisdiction, but when the defendant does not prove either actual prejudice or a conflict of interest? ORIGINAL COURT'S ANSWER: No. The Supervising Judge for the Monroe County Court properly denied defendant's motion for a special prosecutor because his motion failed to demonstrate actual prejudice or a conflict of interest. The victim's identity as a judge, alone, was insufficient to warrant disqualification without the traditional showings needed to secure the extraordinary remedy of a special prosecutor. APPELLATE COURT'S ANSWER: No. The appellate judge from the Monroe County Court properly denied defendant's appeal because defendant failed to prove any unfair treatment or actual prejudice. The Monroe County appellate judge found defendant's key argument focused on the lack of a reduced plea offer unavailing because there was no proof directly from defendant that he would have admitted any liability to even a simple harassment. There was also no dispute that defendant was afforded due process via a fair trial. -2- STATEMENT OF THE NATURE OF THE MATTER This is an appeal from a Decision and Order of the Monroe County Court (Dinolfo, J.), entered November 16, 2011, which affirmed the conviction of defendant-appellant Keith Adams ("defendant") for Aggravated Harassment in the Second Degree [Penal Law ("PL") § 240.30 (1)], entered on August 3, 2010, following a jury trial in Rochester City Court (Aronson, Acting, J.) (Record ["R."] 5-9, 11, 327-328). Defendant was sentenced to time-served and a one-year conditional discharge accompanied by an Order of Protection and a $200 surcharge (R. 5, 11, 330-331 ). A stay has not been granted pursuant to Criminal Procedure Law ("CPL") § 460.50. Associate Judge Theodore T. Jones granted defendant's application to leave to appeal by way of a Certificate dated April 24, 2012 (R. 2). The People submit this responding appellate brief in opposition to defendant's appeal which seeks to create an untenable per se disqualification rule. A per se disqualification rule is unwarranted as it interferes with the District Attorney's broad authority and obviates a defendant's obligation to supply proof of actionable harm. Furthermore, defendant failed to demonstrate any valid basis on which to remove the prosecuting office from his case. -3- COUNTER-STATEMENT OF THE FACTS Corroborated Crime This was not the typical harassment case wherein the defendant's alarming statements were uncorroborated or the victim became later uncooperative. Rather, defendant Adams' aggravated harassment was chronicled in preserved text messages - which he confessed to the police to sending - and the victim remained always willing to testify given defendant's prior, but uncharged, abusive text messages (R. 14-16, 58, 109, 123, 150, 153, 154, 163, 233-236, 250, 256, 260-261' 263, 271' 273, 276-277, 312). These crucial facts distinguish this case from the run-of-the-mill harassment case parameters, not the victim's occupation as a criminal court judge. Maija C. Dixon ("Dixon") had a short intimate relationship with defendant -who lived only a half a block away from her in the City of Rochester - which she terminated due to his alarming behavior, including inappropriate text messages (R. 14-15,52, 66, 70,223-224,226,250, 273-274). A few months after the relationship ended, and on September 20, 2009, defendant approached Dixon at her son's football game (R. 15, 226). When Dixon left defendant to get some food and to talk to other people, defendant abruptly left (R. 15, 229-230). Thereafter, and over the next few hours, defendant re- -4- engaged in his earlier tirades and sent Dixon - via cell-phone texts - a series of 3 lewd messages as follows: "Aint nuttin honorable bout u. Ur a cock suckin easy slut, who has let street niggas tuck u by da dozens like D Hollis." "U fucking common slut. lm putting ur flat ass on blast. Evrybody gonna no how easy ur ass is an how u suck dick until u almost catch an asthama attack. ·Tramp!" Now u got a reason 2 act like u don't know me, u saggy titty whore." (R. 12-13, 15, 230, 232, 234) (emphasis added). Dixon - who preserved the text messages - was very alarmed and afraid, especially in light of defendant's prior irrational behavior and offensive text messages, so she contacted the police (R. 14, 15, 58, 123, 150, 233-236, 250, 256, 260-261, 263, 273). Dixon signed an accusatory instrument against defendant for two (2) counts of Aggravated Harassment in the Second Degree - both subdivision 1 (a) and 1 (b) (R. 12-13). The police arrested defendant at his nearby house after he confessed to sending the text messages (R. 16, 109, 123, 153, 154, 163, 276-277; see also R. 271-272, 312). -5- The accusatory instrument was filed in Rochester City Court given the territorial jurisdiction over the crimes (R. 12}.1 Dixon was a Rochester City Court judge, but was assigned to Monroe County Family Court as an Acting Family Court judge (R. 28-29, 52, 57, 63, 222}. Therefore, and contrary to defendant's claim (Def. App. Br., pp. 4, 18, 23}, it is not clear if Dixon was handling criminal cases in City Court at the times associated with this case. City Court Procedural History Defendant was arraigned in Rochester City Court by a County Court judge sitting as a local court judge (R. 62-73, 94). This procedure was employed because all of the City Court judges recused themselves (R. 63, 72}. Defendant was assigned the Monroe County Public Defender's Office, and entered a plea of not guilty (R. 63-64}. The People left the conditions of defendant's release to Pre-Trial Services to the court's discretion (R. 69). At the next court date, defense counsel noted discussions with an ADA about a potential resolution (R. 75). In response to defendant's request to 1 Defendant's reference to notations and a stamp placed on the accusatory to suggest some type of special treatment for Dixon cannot be chargeable to the People who had no involvement in the filing with the court (Defendant's Appellate Brief ["Def. App. Br."], pp. 6-7). -6- lessen the parameters of his pre-trial release, the ADA noted that Dixon was concerned for her safety and that of her children and, without a request from Dixon, asked for some additional release conditions to be imposed (R. 76-77}. For example, and presumably because defendant appeared at Dixon's son's football game, the ADA asked for orders of protection for her children (R. 79}. The court granted defendant's application for a release downgrade and, although it denied the People's request for further orders of protection, it conditioned defendant's continued release upon him not having any contact with Dixon's children (T. 78-79; compare with Def. App. Br., p. 8). At court on September 30, 2009, defense counsel noted that the parties had not yet been able to agree on a resolution, although one was likely; therefore, more time for discussions was requested and received (R. 83}. On November 4, 2009, another adjournment was allowed to permit time for a plea deal (R. 87). As can be seen from above, the People did not refuse to enter into plea negotiations with defendant. However, at the next court date, the court was advised that no plea deal was going to be possible (R. 90). At that time, the matter was set to be re- assigned to a visiting judge (R. 91 ). -7- On December 2, 2009, a visiting non-county judge was assigned to the case (R. 93). Defense counsel advised the new judge that the parties had engaged in "many conversations" about a plea deal, but were ultimately unable to reach an agreement (R. 95). The matter was adjourned to allow defendant time to file motions (R. 95). The People objected to defendant's request for a further downgrade in his release conditions without having seen an updated report from Pre-Trial Services (R. 97). Disqualification Motions As a part of his January 2010 pre-trial omnibus motion, defendant moved to disqualify the Monroe County District Attorney's Office ("DA's Office") on the grounds of "actual prejudice and the existence of a conflict of interest" (R. 18, ~ F; 28-29, ~ 21 ). The Monroe County Public Defender's Office ("PO's Office") also moved to be relieved of its representation of defendant (R. 18, 28-29).2 As to the disqualification request, defendant contended that the DA's Office should be substituted due to their work in Dixon's court (R. 28). However, defendant acknowledged that the DA's Office was· in a different 2 As part of his omnibus motion, defendant also moved for a dismissal in the interests of justice on many of the same grounds he requested a special prosecutor (R. 18, 29-30). -a- position than the PO's Office who would have to cross-examine Dixon (R. 28). Nevertheless, defendant still argued that the DA's Office was on Dixon's side and was being forced to be her advocate thereby prejudicing him by allegedly prosecuting him differently (R. 29). In particular, defendant submitted that his case required an ACD or a violation plea offer (R. 29). According to defense counsel's conversation with the unidentified assigned ADA, no plea offer was going to be extended given some conversations with Dixon (R. 29). Defense counsel asserted that, in his 12 years of experience, he had never seen a similarly situated defendant not receive a plea offer to an ACD or a violation (R. 29). Based upon this, defendant speculated that the DA's Office was being constrained by Dixon (R. 29). By way of a response, the People denied defendant's factual allegations in general, and specifically opposed the disqualification application (R. 39, 46- 47). The People first objected to the application as improperly venued (R. 46). As to the merits, the People indicated that defendant's case was being handled in accordance with the evidence and also within the controlling ethical and legal obligations (R. 46-47). The People disclaimed defendant's conjecture about Dixon receiving special treatment or defendant receiving unfair treatment (R. 47). In sum, the People argued that no extraordinary -9- circumstances existed to disqualify a constitutional officer (R. 47). At ora.l argument of the pre-trial motions, defendant first conceded the venue problem, but still insisted that the DA's Office could not prosecute his case because of a personal conflict of interest with Dixon that was causing him to be treated differently by not getting the usual reduced plea offer down to a simple violation (R. 102, 104-107). Given the People's motion denials, defendant asked for a hearing (R. 106-107). In response to defendant's arguments, the People first disagreed that defendant did not cause Dixon any harm, and then discounted defense counsel's expectation of how the case should be handled (R. 1 08-1 09). The People submitted that it was common practice to contact a victim to get their perspective on possible dispositions, and that in this case, that was done in the normal course of business (R. 109). The People also stressed the strength of the case, including defendant's confession and newly obtained telephone records, thereby militating against a reduction (R. 1 09). In sum, the People contended that defendant's dissatisfaction with the plea process did not call for the harsh remedy of removal, and that a superior court needed to decide the motion (R. 110-111). The People took no position on the PO's Office's request to be removed (R. 111 ). -10- The court relieved the PO's Office from its representation of defendant, but denied the request for a special prosecutor without prejudice (R. 112-113, 121)? At the next court date wherein a new defense attorney appeared to argued the unresolved pre-trial motions, defendant asked for a Huntley hearingwhich the People did not oppose (R. 120-121). The new defense attorney agreed that any renewed motion for a special prosecutor needed to be filed in a superior court, not City Court (R. 121 ). In conjunction with arguing his motion for a dismissal in the interests of justice, defendant agreed that the People were under no obligation to offer defendant a plea deal, but he nevertheless argued that the lack of a plea offer was due solely to the victim's identity and to placing undue weight on her wishes (R. 122-123). In response, the People again noted that the standard practice was to decipher a victim's wishes, so nothing out of the ordinary was occurring in this case (R. 123). Furthermore, another important plea factor was the quality of the case, and more evidence had just been uncovered against defendant, namely photographs of the saved text messages (R. 123). 3 Although it secured removal below, the Monroe County Public Defender's Office has returned to its representation of defendant Adams. -11- Apparently, some offer was made to defendant, just not one he wanted (R. 124; see also R. 110-111 ). Defendant's motion for a dismissal in the interests of justice was denied without prejudice, and he was afforded time to file a proper motion for a special prosecutor (R. 124, 125).4 The People did not oppose defendant's request for a pre-plea investigation should his motions all be denied, but he later withdrew that request (R. 126-128). By way of a motion, dated February 18, 201 0, defendant renewed his request for disqualification and the assignment of a special prosecutor on the grounds of "actual prejudice" and a "conflict of interest," and incorporated therein the prior motion from the PO's Office (R. 49, ~ 1; 56, ~ 1 ). In the alternative, defendant asked for a hearing to determine the existence of actual prejudice and/or a conflict of interest (R. 49, ~ 2; 56, ~ 2). In the second motion, defendant again noted the fact that the DA's Office routinely appeared before Dixon thereby allegedly creating a conflict of interest (R. 52). Defendant stressed the isolated nature of his crimes, and the fact that all of the City Court judges recused themselves along with the PO's Office (R. 52-53). Besides re-stating the first motion's allegations, the new 4 Defendant never appealed the interests of justice dismissal motion denial (R. 8). -12- motion alleged that the People refused defense counsel "possible'' plea to harassment-second with an order of protection, 40 hours of community service, and treatment purportedly because of Dixon's position (R. 55). However, there was no indication in defendant's motion that he would have accepted that "possible" plea deal (R.51-56). Defense counsel himself spoke with Dixon who confirmed that she did not want a reduction and that she wanted to go to trial (R. 55). Based upon that, defendant submitted that undue weight was being accorded Dixon's wishes and that this constituted a disqualifiable conflict of interest because the DA's Office was allegedly no longer being fair and impartial thereby actually prejudicing him (R. 55). In fact, defendant went so far to allege that the DA's Office was no longer di~interested and was instead acting under the influence of another who had "an ax to grind" against defendant (R. 56). Citing Cannons 5 and 9 of the Code of Professional Responsibility, defendant requested disqualification of the DA's Office (R. 55). As before, the prosecution opposed their removal and the request for a hearing (R. 57-61 ). In their opposition to the second motion, the People indicated that they wanted a top-count plea although they were flexible with the sentencing parameters (R. 58; see also R. 141 ). The People's plea -13- position was based upon "several factors," including but "not limited to" the strength of the proof against defendant -including defendant's confession and the text message records- and the victim's position (R. 58, 60). Thus, · and contrary to defendant's present contention (Def. App. Br., p. 37), those were not the only two criteria the People assessed in making their plea decision. The People next denied that Dixon's job was a factor in how defendant's case was being handled, and also denied that the People were "essentially on her side" (R. 58, 60). Rather, it was Dixon's continued fear of defendant, and of future harassment if he was not held fully accountable, and also her intent to cooperate at any trial, which the People were taking into consideration (R. 59, 60). As argued before, a victim's perspective was a normal consideration in all case screenings, and that customary process was being adhered to in defendant's case (R. 59). The People asserted that defendant's disqualification motion was prompted by his dissatisfaction with the People's plea offer which fell well short of the showing necessary to secure disqualification (R. 59). The People refuted defendant's claim that defendant's proposed plea deal was rejected solely due to Dixon's position (R. 60-61 ). The People also argued that defendant's lack of criminal record, -14- education, community ties, and medical problems were not relevant the People's ability to fairly prosecute his case, although they did bear upon sentencing (R. 60). In all, the People denied that: they were operating under a conflict of interest; defendant was being treated differently; and, that defendant had suffered any undue prejudice (R. 60-61 ). The second disqualification motion was orally argued before Supervising Monroe County Court Judge Patricia Marks (R. 131 ). The only argument that defendant made was to note that everyone else except the DA's Office had gotten out of the case (R. 132). The County Court failed to see any form of actual prejudice when defendant was not entitled to a plea deal (R. 132-133). The County Court also found that the DA's Office was following the law and that defendant was not being treated differently (R. 133). Based upon the foregoing, the County Court denied the motion (R. 133, 136). Further Pre-Trial Proceedings After the above refusal to appoint a special prosecutor, defendant went back to City Court and renewed his motion for a dismissal in the interests of justice which was again denied (R. 136-139). At that same court date, the People did not oppose defendant's request for another downward departure -15- in the terms of his pre-trial release which was granted (R. 143}. Before the start of the Huntley hearing, the People noted that they re- approached Dixon about a resolution of the case and that she was not amenable to one although the exact terms of the proposed plea deal are unclear from the record (R. 148}. The court noted that victims sometimes had strong feelings about a case (R. 148}. It appears that defendant's motion to suppress his confession was denied. Jury Trial and Sentencing Before starting their direct case, the People elected to proceed on only 1 count of aggravated harassment-second (R. 219-220}. At the jury trial, Dixon testified subject to cross-examination (R. 221- 265}. The jury was instructed that Dixon was not to be treated in any special manner (R. 237}. A police officer testified about defendant's confession (R. 276-277). Defendant also took the stand in his own defense (R. 279-296). For his defense, defendant claimed that his relationship with Dixon was a dominatrix-submissive sexual relationship, and that he sent the subject text messages as a form of sexual foreplay as Dixon was aroused by being called dirty names (R. 283, 286, 288-290, 293; see also R. 218, 245-250, 303, 308). -16- The jury found defendant guilty of the lone remaining count of aggravated harassment (R. 11, 327-328). Defendant was immediately, and without input from the People, sentenced to time-served with a conditional discharge (R. 11, 329-330). Defendant appealed his conviction (R. 1 0). County Court Appellate Proceedings On appeal to the Monroe County Court, defendant was unable to secure a reversal (R. 5-9). In rejecting defendant's appeal, the County Court first noted that defendant received a fair trial - a fact which defendant did not contest (R. 7). As to the special prosecutor issue, the County Court concluded that the record bore no proof of "unfair treatment," and that defendant failed to show actual prejudice (R. 8). As to actual prejudice, the County Court found it significant that the record was bereft of proof that "[d]efendant actually would have taken such a [reduced] plea," and instead emphasized defendant's trial testimony disclaiming any and all criminal intent (R. 8). Without proof that defendant would have accepted a reduced plea offer, the County Court ruled that defendant suffered no actual prejudice by going to trial - a trial which defendant did not dispute was fair (R. 8-9). Lastly, the County Court -17- determined that any nuances in defendant's appellate arguments were not preserved for appellate review (R. 9). Based upon all of the foregoing, defendant's appeal was denied thereby affirming his conviction (R. 9). Defendant's conviction should remain affirmed because he was not entitled to a special prosecutor given his lacking motion proof when assessed against the law. There is further no basis to impose the per se disqualification rule defendant proposes. -18- ARGUMENT THERE SHOULD BE ANOTHER AFFIRMANCE BECAUSE DEFENDANT WAS PROPERLY REFUSED A SPECIAL PROSECUTOR AS CORRECTLY FOUND BY THE COUNTY APPELLATE COURT. As the lower appeals court properly determined, defendant was rightfully denied a special prosecutor because his motion papers did not comply with the stringent standard necessary to justify the removal of the DA's Office. See e.g. People v. Keeton, 74 NY2d 903, 904 (1989) (affirming the defendant's conviction because he failed to demonstrate grounds for disqualification of the DA). As in Keeton, this Court should affirm defendant Adams' conviction on the ground that he fell short of the high evidentiary hurdle needed to secure a special prosecutor. Besides there being no basis to appoint a special prosecutor in defendant Adams' case, there is also no basis to develop a bright-line rule removing a prosecutor when the victim is a criminal court judge in the same jurisdiction. It is respectfully submitted that this Court should not implement such an automatic disqualification scenario thereby relieving a defendant of the high burdens of proof long associated with motions for a special prosecutor. A per se disqualification requirement, without the attendant defense proof, would have a negative impact upon duly elected prosecutors, -19- and would also have the tendency to be exploited by defendants as free reign to chose a new prosecutor. A. Defendant's lead argument for disqualification, based solely upon an alleged appearance of impropriety given Dixon's employment, is not properly postured for appellate review as it was not the stated basis of either of his disqualification notices of motion. As a preliminary matter, the appeals court below rightfully concluded that any of defendant's "nuanced arguments" were not preserved for appellate review (R. 9). One such "nuanced" argument is defendant's primary appellate contention that an appearance of impropriety, alone, was sufficient to compel disqualification (Def. App. Br., pp. 20-24). However, at the trial level, defendant's motion notices were confined to allegations of actual prejudice and a conflict of interest (R. 18, ~ F; 49, ~ 1; see also R. 56,~ 1 ). See People v. Gray. 86 NY2d 10, 19 (1985) (in order to preserve a claim of error, a defendant must make his or her position known to the court). Defendant's requests for a hearing were likewise limited to allegations of actual prejudice and a conflict of interest (R. 49, ~ 2; 56,~ 2). Defendant's quick reference to an appearance of impropriety was not adequate to preserve the issue when examined in the context of how the notices of motions and requested relief were framed by defendant (R. 55). Consequently, this discrete basis for a -20- reversal is not properly before this Court. See CPL 470.05 (2); People v. Thomas, 50 NY2d 467,471 (1980) (points which were not raised below may not be considered for the first time on appeal). This Court's review powers are limited to questions of law, meaning issues that have been preserved for appellate consideration by way of a protest thereto. See CPL450.90 (1); 460.20 (1); 470.05 (2) &470.35; People v. Baumann & Sons Buses, 6 NY3d 404, 406-407 (2006) (dismissing appeal concerning unpreserved claim). "The requirement that a claim must be timely raised in order to create a question of law is grounded in large part in the need to preserve limited judicial resources and avoid untoward delay in the resolution of criminal proceedings." People v. Michael, 48 NY2d 1, 6 (1979). As this Court has further decreed: when a defendant neglects to raise a particular legal argument before the court of first instance, he effectively deprives the People of a fair opportunity to present their proof on that issue ... Moreover, our rule of "preservation" requires defendants to raise all of their arguments in a timely fashion so that errors of law which might otherwise necessitate a retrial can be avoided or promptly cured. People v. Martin, 50 NY2d 1029, 1031 (1980) (the defendant was foreclosed from raising a challenge not made before the original court). -21- Based upon all of the above law, and the limited grounds for relief specified by defendant in his notices of motion, defendant is not entitled to appellate review of his chief appellate contention that a purported appearance of impropriety, alone, dictated the need for a special prosecutor. See People v. Carncross, 14 NY3d 319, 325 (201 0} (preservation requires that the argument be specifically addressed to the subject error). In any event, and even if this Court were to disagree with the People on the issue of preservation, a reversal is still not necessitated because there was not an appearance of impropriety, nor was there a demonstrated conflict of interest or actual prejudice compelling disqualification. B. Strict disqualification standard of County Law § 701 (1) as elucidated by this Court. Securing a special prosecutor is an extremely difficult hurdle to surpass, and one which defendant Adams failed to do. See e.g. Keeton, 74 NY2d at 904 (the defendant failed to demonstrate grounds for disqualification of the DA). The District Attorney is an elected constitutional officer in the executive branch of government. ·See NY Canst., Art. XIII, § 13 (a); Holtzman v. Goldman, 71 NY2d 564, 573 (1988). See also People v. Gilmour, 98 NY2d -22- 126, 130 (2002); Johnson v. Pataki, 91 NY2d 214, 224-225 (1997). The District Attorney is further statutorily charged with prosecuting all crimes committed in the county wherein she or he serves. See County Law § 700 . (1 ). See also People v. DiFalco, 44 NY2d 482, 486 (1978); People v. Rickert, 58 NY2d 122, 131 (1983) ("it is the prerogative of a District Attorney to prosecute people who commit crimes"). Given both the constitutional and statutory authority, the District Attorney has broad discretion in handling prosecutions. See Curry v. Hosley, 86 NY2d 470, 473 (1995); People v. Carter, 77 NY2d 95, 106 (1990) (there is "undeniably broad discretion vested in public prosecutors"); Cowles v. Brownell, 73 NY2d 382, 390 (1989) ("prosecutors ... have been accorded considerable discretion within their own sphere of responsibility"); People v. Fuller, 57 NY2d 152, 159 (1982). This well-recognized broad and considerable discretion is "not freely transferable to anyone else." Haggerty v. Himelein, 89 NY2d 431, 436 (1997). The exceptional power to disqualify a District Attorney, and supersede her or him by appointing a special prosecutor via County Law § 701, is very limited as removal of an elected constitutional officer by a court implicates separation of powers considerations. See Schumerv. Holtzman, 60 NY2d 46, 55 (1983). -23- County Law § 701 provides in pertinent part that: Whenever the district attorney of any county and such assistants as he or she may have shall not be in attendance at a term of any court of record, which he or she is by law required to attend, or are disqualified from acting in a particular case to discharge his or her duties at a term of any court, a superior criminal court in the county wherein the action is triable may, by order: (a) appoint some attorney at law having an office in or residing in the county, or any adjoining county, to act as special district attorney during the absence, inability or disqualification of the district attorney and such assistants as he or she may have; or (b) appoint a district attorney of any other county within the judicial department or of any county adjoining the county wherein the action is triable to act as special district attorney, provided such district attorney agrees to accept appointment by such criminal court during such absence, inability or disqualification of the district attorney and such assistants as he or she may have. County Law § 701 (1 ). This Court has held that County Law § 701 (1)'s "exceptional superseder authority" should not be expansively interpreted, and should instead be narrowly construed and invoked sparingly. People v. Leahy, 72 NY2d 510, 513-514 (1988) (§ 701 was designed to fill only "emergency gaps" in an elected prosecutorial official's responsibility). See also Harveyv. County -24- of Rensselaer, 83 NY2d 917, 919 (1994}. In Leahy, this Court noted an "undeviating line of decisions fastidiously circumscribing superseders or transfers of the authority of elected prosecutors." Leahy, 72 NY2d at 515 (citing Dondi v. Jones, 40 NY2d 8, 19 (1976) and Pietra v. State, 71 NY2d 792, 796 (1988}}. Given the narrowness of County Law§ 701 (1 )'s intended coverage, a judge "should remove a public prosecutor only to protect a defendant from actual prejudice arising from a demonstrated conflict of interest or a substantial risk of an abuse of confidence." Schumer, 60 NY2d at 55. See also People v. Abrams, 17 NY3d 760, 763 (2011) (the defendant failed to show prejudice or a conflict from the DA's previous representation of him). Disqualification is appropriate only when the defendant proves, and the court finds, "actual prejudice or so substantial a risk thereof as could not be ignored." Schumer, 60 NY2d at 55.5 Mere allegations of impropriety alone are normally insufficient to support disqualification. See Schumer, 60 NY2d at 55. See also People v. Herr, 86 NY2d 638, 641 (1995} (disqualification is not required whenever there exists a possible appearance problem). 5 Defendant's cited case of People v. Zimmer, 51 NY2d 390 (1980} has been superseded by Schumer which imposed a much more stringent burden to gain disqualification (Def. App. Br., pp. 19-21 ). -25- Lastly, prosecutors are presumed to act professionally and ethically. See Carter, 77 NY2d at 111 (licensed attorneys are presumed to possess sound judgment); People v. Fielding, 158 NY 542, 547 (1899) (a prosecutor is presumed to act impartially in the interest only of justice). Defendant Adams failed to overcome this presumption, and Judge Mark's finding that the People were acting in accordance with the law was thus a valid application of that presumption (R. 133). Based upon all of the above, it is the People's position that there is a strong public policy against having others perform the District Attorney's duties in conducting local prosecutions, and County Law§ 701 (1) was neither designed nor intended to grant defendants veto power over the duly elected District Attorney that is in the process of prosecuting them. The lower appeals court's affirmance comported with this policy, as well as the County Law and this Court's legal authority. See e.g. People v. English, 88 NY2d 30, 34 (1996) (reversal was not required due to alleged conflict of interest). -26- C. The lower appeals court correctly found that defendant failed to prove any basis for removal of the DA 's Office. 6 The county appellate court was correct to affirm defendant's conviction and uphold the denial of his motion for a special prosecutor as defendant failed to fulfill his stringent proof burdens. See Keeton, 74 NY2d at 904. Defendant fails to squarely address the rationales underlying Judge Dinolfo's decision affirming his conviction, and in turn, defendant fails to show a meritorious appellate claim. One such overlooked reasoning is the appeals court's keen focus on the important fact that defendant was not complaining that his jury trial was unfair (R. 7). Defendant's appellate brief is bereft of any claim that the People tainted the jury trial -the one proceeding which he did have a constitutional right to have done. Also, nothing in the trial record shows that defendant's jury trial was unfair, and in fact, it shows that defendant received a benefit by the People dropping one of the charges and also by receiving a very lenient sentence (T. 219-220, 330-331) (Def. App. Br., p. 36} Rather, defendant again claims foul-whether as an appearance of impropriety, actual prejudice, 6 Although defendant partitions his brief between arguments relating to an appearance of impropriety and then, in the alternative, actual prejudice, the People have combined their responsive argument as the law and the facts apply equally to each such claim. -27- or conflict on interest - due to the People's plea offer positioning. This claim remains faulty on both the law and on the facts. As to the law, the country's highest court has more than once ruled that a criminal defendant has no constitutional right to a plea bargain. See Weatherford v. Bursey, 429 US 545, 561 (1977) (Def. App. Br., p. 32). See also Missouri v. Frye, 132 S Ct 1399, 1403 (2012); Hynes v. Tomei, 92 NY2d 613,625 (1998) (Def. App. Br., pp. 32, 33, 37). The Supreme Court has also held that a defendant has no absolute right to have a guilty plea accepted by a court. See Santobello v. New York, 404 US 257, 262 (1971 ). In the absence of such rights, a prosecutor need not offer a plea deal if she or he prefers to go to trial. See Lafler v. Cooper, 132 S Ct 1376, 1395 (2012) (Def. App. Br., p. 33). Due to the above Supreme Court law, the People's sound discretion not to offer defendant Adams a reduction does not qualify as actual prejudice, a conflict of interest, or an appearance of impropriety necessitating disqualification. To conclude otherwise would wholly undermine the People's broad discretion in handling prosecutions by conferring veto power to unsatisfied defendants, See Curry. 86 NY2d at 4 73; Carter, 77 NY2d at 1 06; Cowles, 73 NY2d at 390; Fuller, 57 NY2d at 159. The People's positioning -28- on plea bargaining in this strong proof case simply did not warrant disqualification under any theory advanced by defendant. As to the facts, defendant was offered a plea deal, just not one he liked (R. 58, 75, 83, 87, 95, 110-111, 124, 141 ). Therefore, defendant was not denied the chance to avoid a trial, but it was just not on the terms defense counsel proposed. Such dissatisfaction cannot be converted into prejudice or unfair treatment on which to champion for a special prosecutor. To allow a defendant's dissatisfaction with a plea offer dictate disqualification would open the proverbial floodgates, and set a dangerous precedent interfering with the a District Attorney's constitutional and statutory authority. Furthermore, the People's decision to seek a top-count plea was legitimately premised upon, not only the unusual good strength of the case, but also input from Dixon (R. 58-61, 109, 123}. It was customary practice for prosecutors state-wide to consult with the victim abouta potential disposition (R. 59, 109, 123, 148). See e.g. People v. Urbaez, 10 NY3d 773, 775 (2008} (the victim's wishes, which may be based upon his or her prior dealings with the defendant, is to be taken into consideration by the prosecution when deciding whether or not to reduce a charge) (Def. App. Br., p. 38). -29- Per Urbaez, and in this case, Dixon remained fearful of her neighbor given his past conduct and also expressed her intended trial cooperation (R. 59-60, 76-77). Defendant's past uncharged harassing text messages made the instant crimes more serious and not as isolated as defendant tries to characterize them (R. 14-15, 52, 66, 70, 223-224, 226, 250, 273-274) (Def. App. Br., pp. 37-38). Defendant's argument suggests, when taken to its logical conclusion, that the prosecution is never allowed to consult with a victim about a plea decision (Def. App. Br., p. 34). That suggestion cannot stand judicial review. The People did not abdicate their discretion to Dixon, but factored her legitimate concerns into their own plea decision (R. 59, 60, 76, 77). Given the compelling proof against defendant, which included a confession, telephone records and an amenable victim, it was reasonable to not offer a reduction to a harassment violation (R. 58, 60, 109, 123). See generally People v. Eboli, 34 NY2d 281, 288 (1974) (the discretion to decide what is an appropriate case warranting prosecution of a lower degree crime is entrusted to the prosecutor) (Def. App. Br., p. 43). In addition, there is nothing but speculation that a special prosecutor would have given defendant a reduced plea offer (Def. App. Br., p. 30), or for that matter that defendant was able to colloquy to the charge and that the court would have agreed to -30- the deal. Moreover, and as the county appeals court properly emphasized, there is no proof in the record that defendant would have accepted a reduction thereby failing to sustain his burden to prove actual prejudice (R. 8). To the contrary, the record demonstrates that defendant maintained his innocence at trial by testifying that he lacked any criminal intent to harass Dixon as his text messages were simply sexual foreplay (R. 218, 245, 250, 283, 286, 288- 290, 293, 303, 308). Defendant's present submission that there was a clear indication that he would have accepted a reduced plea is not supported by any proof directly from him as opposed to a "possible" plea deal suggested by his attorney (Def. App. Br., p. 35). As the Court is well aware, defense attorneys often secure plea offers which are ultimately rejected by their clients. Due to the foregoing, there is no record basis to conclude that defendant was harmed by the lack of a reduced plea offer. Given this lacking proof, there was no need for a hearing on the issue of defendant's alleged differential treatment (Def. App. Br., pp. 42-44). Besides there being no appearance of impropriety and no actual prejudice arising from the People's plea position, there was also no per se -31- conflict of interest arising from Dixon's status as a judge. 7 The traditional conflict of interest scenarios arise out of situations were confidential information about a defendant could be divulged to the People and improperly used against him or her. See e.g. People v. Shinkle, 51 NY2d 417 (1980) (the defendant was entitled to a reversal due to his attorney joining the DA's Office); People v. Schrager, 74 Mise 2d 833 (Queens Co Sup Ct 1973) (a special prosecutor was warranted because the defendant was an ADA) (Def. App. Br., pp. 21, 22). That is not the scenario of defendant Adams' case, and thus both Shinkle and Schrager are inapposite (Def. App. Br., pp. 21, 22). Defendant's other case law does not compel a reversal. For example, . Zimmer is factually distinguishable as that ADA was a shareholder in the victim-company thereby creating a per se conflict of interest as a victim- advocate (Def. App. Br., pp.19-21). Peoplev. Baker, 99AD2d 656 (4th Dept 1984) is likewise distinguishable because that ADA was the step-mother of a witness and also a friend to the victims (Def. App. Br., p. 21 ). Additionally, People v. Rocci, 184 Mise 2d 670 (Utica City Ct 2000) is also distinguishable as an ADA was a witness and filed a supporting deposition (Def. App. Br., pp. 7 As noted in the fact section, Dixon was sitting as an Acting Family Court Judge, not as a City Court Judge, so she may not have even been handling criminal cases at the relevant times (R. 28-29, 52, 57, 63, 222). -32- 25-26). Moreover, the Rocci decision was apparently later vacated. Unlike Zimmer, Baker, and Rocci, no such overt conflict exists in defendant Adams' case. As a result, those cases are not persuasive authority supporting a reversal. Finally, and due to lacking proof in defendant's motions, the People were under no obligation to "explain why it was so important to prosecute" this case (Def. App. Br., p. 27; see also Def. App. Br., p. 36). The burden of proof is placed squarely on defendant, and he failed to meet the same thereby relieving the People from having to explain anything. In any event, the Monroe County DA has the constitutional and statutory authority to prosecute defendant Adams for his crimes, and that authority cannot be easily negated. See Haggerty, 89 NY2d at 436; Leahy, 72 NY2d at 513-515; Schumer, 60 NY2d at 55. To shift the burden to the People to justify their continued participation in a prosecution would render those grants of authority meaningless. In sum, defendant's motion allegations were utterly insufficient to warrant a hearing or to compel the removal of the Monroe County District Attorney's Office. -33- D. The People strenuously oppose the imposition of the per se conflict rule advanced by defendant. Not only do the People disagree that defendant was entitled to a special prosecutor for the reasons stated above, but they also implore the Court not to accept defendant's proposed blanket disqualification rule in total disregard to "a case-by·case 'actual prejudice' analysis" (Def. App. Br., p. 24; see also pp. 25-30). Defendant proposes that the Court create a hard and fast rule that, any time the victim is a local judge who presides over criminal cases, that the District Attorney's Office should be removed regardless of any impact on the defendant (Def. App. Br., p. 26). Such a rigid rule is unworkable for the following reasons. First, such an automatic disqualification mandate would totally eviscerate the moving burdens imposed on a defendant to win a special prosecutor thereby rendering some of this Court's decisions superficial. See Leahy. 72 NY2d at 513-515; Schumer, 60 NY2d at 55. Contrary to defendant's suggestion (Def. App. Br., pp. 24-27), a case-by-case analysis is critical to ensuring that a District Attorney's broad constitutional and statutory prosecutorial authority is not lightly usurped. See Haggerty, 89 NY2d at 436; -34- Leahy. 72 NY2d at 513-515; Schumer, 60 NY2d at 55. To allow otherwise would foster forum shopping for a new prosecutor by disgruntled defendants. Second, defendant's emphasis on the public viewpoint fails to recognize that the public elected their District Attorney (Def. App. Br., p, 27). To replace the sitting District Attorney with a private attorney [whom often are defense attorneys], or even an out-of-county District Attorney, negates that electoral choice. It would seem logical that the public would have more confidence in their chosen official than a judicially appointed one. In addition, a special prosecutor costs the taxpayers additional funds as defendant's case-law seemingly recognizes. See e.g. People v. Gonzalez, 30 Mise 3d 1221 (A) (Kings Co Sup Ct 2011) (denying motion for special prosecutor) (Def. App. Br., pp. 28-29). Third, setting a per se disqualification requirement for when a criminal court judge is a victim would create the proverbial slippery slope. If a District Attorney could not prosecute a defendant who victimized a judge, it opens the floodgates to create further disqualifiable classes of victims (Def. App. Br., p. 29). For example, the judge's secretary and law clerk, the judge's court staff, and the judge's family and friends could all conceivably warrant disqualification under defendant's reasoning that the prosecution would not -35- objectively assess a case in hopes of currying favor with the judge (Def. App. Br., p. 24). In addition, defendant's proposal has the potential to be stretched to incorporate civil judges as well whom the District Attorney needs to appear in front of for state habeas corpus and CPLR Article 78 special proceedings, as well as other potential civil matters arising out of criminal litigation. Thus, and contrary to defendant's contention, his proposal has wide-ranging negative repercussions, not just in Monroe County, but also on a state-wide level (Def. App. Br., p. 29). In all, this Court, respectfully, should refuse to create a new rule of law that dictates recusal of a District Attorney's Office in the scenario advanced by defendant without any of the traditional defense proof requirements. E. Defendant's moving papers were insufficient to necessitate a hearing. Defendant's final point is that his motion, at the minimum, required a hearing to decide (Def. App. Br., pp. 42-44). The People dispute that, and also contest the need for this Court to remand the matter for a hearing. As this Court has decreed "hearings are not available merely for the asking." People v. Gruden, 42 NY2d 214, 217 (1977) (Def. App. Br., p. 42). -36- ln light of the above, as well as the strong presumption that prosecutors act professionally and ethically (see Carter, 77 NY2d at 111; Fielding, 158 NY at 547), Judge Marks did not err by not holding a hearing on defendant's motion. Instead, Judge Marks properly employed the presumption to conclude that the People were following the law in defendant's case (R. 133). Again, it was defendant's burden to supply sufficient proof to rebut the above presumption and to be entitled to a special prosecutor. Under the broad constitutional and statutory authority conferred upon a District Attorney, . the prosecution in defendant Adams' case did not need to provide facts to support their position (Def. App. Br., p. 42). In the alternative, and pursuant to the above principles, if the Court should elect to remand the matter for a hearing, the onus should be placed on defendant- whose motion this arises from -to prove his case for a special prosecutor. Defendant's use of Gruden to attempt to place the burden on the People is unavailing as Gruden was a speedy trial motion to dismiss the indictment case for which the burden is unquestionably placed on the People to prove the presence of adequate non-chargeable time-frames. Unlike the CPL 30.30 context, and owing to the vast authority granted to a District Attorney, a criminal defendant bears the burden of proof to secure a special -37- prosecutor. Moreover, this Court has clearly placed the burden on the "objector," i.e. the moving defendant, to demonstrate prejudice from continued prosecution by the elected District Attorney. See Schumer, 60 NY2d at 55. There is no basis to depart from Schumer and switch the burden to the People. Defendant's motion stems from Dixon's status a judge, and not frorn any internal workings of the Monroe County District Attorney's Office. As such, defendant's case of People v. Cruz, 55 AD2d 921 (2d Dept 1997) is distinguishable and thus not persuasive authority for defendant's hearing arguments. In sum, defendant was not, and is not, eligible to have a hearing on his disqualification motion. In conclusion of this entire Point: (1) not all of defendant's appellate claims are preserved; (2) defendant's disqualification allegations did not rise to the level necessary to warrant a hearing or the intervention of a special prosecutor; and, (3) defendant's proposed per se disqualification rule is legally flawed. -38- CONCLUSION Based upon all of the foregoing, the People respectfully request that defendant's criminal judgment remain affirmed. DATED: September, 2012. BY: Leslie E. Swift, Esq. - Senior ADA Respectfully submitted, SANDRA DOORLEY Monroe County District Attorney Respondent 47 South Fitzhugh Street, Suite 832 Rochester, New York 14614 Telephone: (585) 753-4564 STATE OF NEW YORK COURT OF APPEALS THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -vs- KEITH A. ADAMS, Appellant. STATE OF NEW YORK) COUNTY OF MONROE) SS: CITY OF ROCHESTER) AFFIDAVIT OF SERVICE BY MAIL Catherine Flaherty, being duly sworn, deposes and says that deponent is not a party to this action, is over the age of eighteen (18) years and resides at Rochester, New York. That on the 12th day of September, 2012, deponent served three (3) copies of Brief for Respondent, and CD upon David R. Juergens, Esq., Assistant Public Defender, attorney for Appellant in this action at 10 N. Fitzhugh Street, Rochester, New York 14614, by depositing a true copy of the same, enclosed in a postpaid properly addressed wrapper, in an official depository under the exclusive care and custody of the United States Postal Service within the State ofNew York. Sworn to before me this 12th day of September, 2012. RYPUBLI JEANNE T. HELLEii IOTARY POBI,IC, State of N.Y., Mo[". • Commissloo Expires o hl " ~\ S STATE OF NEW YORK* COURT OF APPEALS PEOPLE OF THE STATE OF NEW YORK, Respondent, -vs- PDF CERTIFICATION KEITH A. ADAMS, Appellant. I, LESLIE E. SWIFT, ESQ., certify that I am an attorney admitted to practice in the State of New York, and that I compared the PDF brief and it is identical to the filed original printed materials. DATED: September 12, 2012 LESLIE E. SWIFT, ESQ.