The People, Respondent,v.Keith A. Adams, Appellant.BriefN.Y.February 13, 2013 To Be Argued By: DAVID R. JUERGENS Assistant Public Defender Requested Time: 10 Minutes STATE OF NEW YORK * COURT OF APPEALS ___________________________________________________ THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -vs- KEITH A. ADAMS, Appellant. ___________________________________________________ BRIEF FOR APPELLANT TIMOTHY P. DONAHER Monroe County Public Defender Attorney for Appellant BY: DAVID R. JUERGENS Assistant Public Defender Of Counsel 10 N. Fitzhugh Street Rochester, New York 14614 Tel: (585) 753-4093 Fax: (585) 753-4234 Brief Completed: June 20, 2012 TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES i-iv QUESTIONS PRESENTED 1 PRELIMINARY STATEMENT 3 STATEMENT OF FACTS 4 POINT I: THE MANDATORY LEGAL RELATIONSHIP BETWEEN THE PROSECUTOR (THE MONROE COUNTY DISTRICT ATTORNEY) AND THE COMPLAINANT (A SITTING ROCHESTER CITY COURT JUDGE) CREATED A PER SE CONFLICT OF INTEREST (THE APPEARANCE OF IMPROPRIETY ITSELF). THE MOTION COURT ERRED BY REFUSING TO GRANT THE DEFENDANT’S REQUEST FOR A SPECIAL PROSECUTOR. 17 A. Introduction 17 B. The Role of the District Attorney 19 C. The Appearance of Impropriety 20 D. The Mandatory Legal Relationship Between a County District Attorney and a Sitting Criminal Court Judge 22 E. The Per Se Conflict of Interest Rule 24 F. Other Public Policy Matters 28 G. Summary 30 POINT II: BASED UPON THE WISHES OF THE COMPLAINANT (A SITTING ROCHESTER CITY COURT JUDGE), THE MONROE COUNTY DISTRICT ATTORNEY REFUSED TO OFFER THE DEFENDANT A PLEA TO A REDUCED CHARGE. THIS CONDUCT CAUSED ACTUAL PREJUDICE TO THE DEFENDANT ARISING FROM A DEMONSTRATED CONFLICT OF INTEREST. THE MOTION COURT ERRED BY DENYING THE DEFENDANT’S REQUEST FOR A SPECIAL PROSECUTOR. 32 A. Introduction 32 B. The Paramount Importance of Plea Negotiation 32 C. The Demonstrated Conflict of Interest 34 D. The Actual Prejudice to the Defendant 34 E. Justifying the Unjustifiable 36 F. Plea-Bargaining Factors Used and Not Used 37 G. The Improper Delegation of Prosecutorial Discretion 39 H. Summary 40 POINT III: THE MOTION COURT ERRED WHEN IT DENIED THE DEFENDANT’S REQUEST FOR THE APPOINTMENT OF A SPECIAL PROSECUTOR WITHOUT CONDUCTING ANY HEARING ON THE DEFENDANT’S ASSERTION THAT THE PROSECUTOR WAS IMPROPERLY TREATING HIM MORE SEVERELY THAN SIMILARLY-SITUATED DEFENDANTS. 42 CONCLUSION 45 i TABLE OF AUTHORITIES Constitutions NY Const, art I, § 6 ........................................................................................... 30, 41 US Const, Amend V.......................................................................................... 30, 41 Federal Cases Baez v Hennessy, 853 F2d 73 (2d Cir 1988) .....................................................................................28 Berger v United States, 295 US 78 (1935) .................................................................................................19 Lafler v Cooper, __ US __, 132 S Ct 1376 (2012) ..........................................................................33 Missouri v Frye, ___ US ___, 132 S Ct 1399 (2012) ............................................................... 32, 33 Walker v City of New York, 974 F2d 293 (2d Cir 1992) ...................................................................................28 Weatherford v Bursey, 429 US 545 (1977) ........................................................................................ 32, 33 State Cases Kinberg v Kinberg, 48 AD3d 387 (1st Dept 2008) ..............................................................................40 Matter of Balter v Regan, 79 NY2d 938 (1992) ............................................................................................23 ii Matter of Brostoff v Berkman, 79 NY2d 938 (1992) .............................................................................................24 Matter of Curry v Hosley, 86 NY2d 470 (1995) .............................................................................................19 Matter of Hynes v Tomei, 92 NY2d 613 (1998) .............................................................................................37 Matter of Schumer v Holtzman, 60 NY2d 46 (1983) ........................................................................................ 18, 22 Matter of Sedore v Epstein, 56 AD3d 60 (2d Dept 2008) .................................................................................40 McGinley v Hynes, 51 NY2d 116 (1980) .............................................................................................28 People v Baker, 99 AD2d 656 (4th Dept 1984) ..............................................................................21 People v Cahill, 2 NY3d 14 (2003) .................................................................................................43 People v Cruz, 55 AD2d 921 (2d Dept 1977) ...............................................................................43 People v Dietze, 75 NY2d 47 (1989) ...............................................................................................39 People v DiFalco, 44 NY2d 482 (1978) .............................................................................................20 People v Duran, 25 Misc3d 1210 (NY City Crim Ct 2009) ...........................................................39 People v Eboli, 34 NY2d 281 (1974) ............................................................................................43 iii People v Fielding, 158 NY 542 (1899) ..............................................................................................19 People v Gonzalez, 30 Misc3d 1221(A), 2011 WL 505024 (Sup Ct, Kings County 2011) ......... 28, 29 People v Gruden, 42 NY2d 214 (1977) .............................................................................................42 People v Robinson, 27 Misc3d 635 (Sup Ct, Kings County 2010) ......................................................40 People v Rocci, 184 Misc2d 670 (Utica City Court 2000) ...................................................... 25, 26 People v Schrager, 74 Misc2d 833 (Sup Ct, Queens County 1973) ...................................................22 People v Seaberg, 74 NY2d 1 (1989) .................................................................................................39 People v Selikoff, 35 NY2d 227 (1974) .............................................................................................39 People v Shack, 86 NY2d 529 (1995) .............................................................................................39 People v Shinkle, 51 NY2d 417 (1980) .............................................................................................21 People v Urbaez, 10 NY3d 773 (2008) .............................................................................................38 People v Zimmer, 51 NY2d 390 (1980) ................................................................................ 19, 20, 21 iv State Statutes Civil Rights Law § 50 (b) ...................................................................................... 6-7 County Law § 700 (7) .............................................................................................44 County Law § 700 (8) .............................................................................................22 County Law § 701 (1) ...................................................................... 3, 16, 22, 31, 41 Penal Law Article 130................................................................................................ 7 Penal Law § 240.30 (1) (a) ............................................................................ 3, 4, 15 Penal Law § 240.30 (1) (b) ............................................................................ 3, 4, 15 Other Authorities ABA Standards Prosecution Function, § 3-1.2 .......................................................25 Code of Professional Responsibility, Canon 5 ........................................... 12, 17, 18 Code of Professional Responsibility, Canon 9 ..................................... 12, 17, 18, 21 1 QUESTIONS PRESENTED Unless “disqualified from acting in a particular case,” the Monroe County District Attorney has a legal duty “to conduct all prosecutions for crimes and offenses cognizable by the courts of” Monroe County, including Rochester City Court (see County Law § 701 [1]). Here, a sitting Rochester City Court Judge was the complainant in a criminal action (for second-degree aggravated harassment) commenced against the defendant in Rochester City Court. In Monroe County Court, the defendant moved for a special prosecutor. 1. Can the “appearance of impropriety,” standing alone, disqualify the Monroe County District Attorney from acting as the prosecutor in a Rochester City Court case where the complainant was a sitting Rochester City Court Judge? Answer Below: No. The motion court ruled that disqualification of the Monroe County District Attorney from acting as prosecutor could only be based upon “actual prejudice” to the defendant. 2. Can “actual prejudice” to the defendant be established by showing that the Monroe County District Attorney was unduly influenced by the complainant-judge and, therefore, unjustifiably refused to offer the defendant a guilty plea to a reduced charge? 2 Answer below: No. The motion court ruled that a defendant has no “constitutional right” to a plea bargain and, therefore, cannot suffer any prejudice from the prosecutor’s refusal to offer a plea bargain. 3. By denying the defendant’s motion for a special prosecutor without a hearing (to determine whether the People were treating the defendant differently from other similarly-situated defendants), did the motion court err? Answer below: No. 3 PRELIMINARY STATEMENT On September 20, 2009, Keith Adams was charged, by way of an information/complaint filed in Rochester City Court, with two counts of second- degree aggravated harassment (Penal Law § 240.30 [1] [a], [b]). The charges arose from allegations that Mr. Adams, earlier that day, had sent three offensive text messages (via cell phone). On February 26, 2010, Mr. Adams’ motion for a special prosecutor (pursuant to County Law § 701 [1]) was denied by the Honorable Patricia D. Marks, Monroe County Court Judge. A two-day jury trial was held in Rochester City Court, starting on August 2, 2010, before the Honorable Stephen D. Aronson, a visiting judge from Wayne County. Mr. Adams was convicted of second-degree aggravated harassment (one count). On August 3, 2010, Mr. Adams was sentenced to a one-year conditional discharge and a stay-away order of protection. On October 26, 2011, by Decision and Order, the Honorable Vincent M. DiNolfo, Monroe County Court Judge, affirmed Mr. Adams’ conviction. On April 24, 2012, the Honorable Theodore T. Jones granted Mr. Adams leave to appeal to this Court. 4 STATEMENT OF FACTS On September 20, 2009, the complainant (Hon. Maija Dixon), a sitting Rochester City Court Judge, accused her neighbor and ex-lover (Keith Adams) of committing a crime (second-degree aggravated harassment) (two counts) (Penal Law § 240.30 [1] [a], [b]) by sending her three cell phone text messages earlier that day. Admittedly, these text messages were crude, vulgar and very offensive, but they contained no threats of violence or physical injury (Record [“R”] at 12-13, 222-226, 232-234). The complainant had known Mr. Adams, a man in his mid-forties, for approximately ten years. A life-long resident of Rochester, Mr. Adams was a graduate of McQuaid High School, Syracuse University (BA) and Penn State University (MBA). He was actively involved with several charitable organizations. He suffered medical problems due to kidney transplants. He had no criminal record (R 34-36, 64-65, 222-223, 279-280). In January 2009, the complainant moved to Mr. Adams’ street, only about “a half block” away from the house where Mr. Adams and his parents lived (R 65-66, 70, 222-223). In February 2009, the couple had an intimate, romantic relationship that lasted two to three weeks (R 223-224, 245). Thereafter, contact between them was intermittent, primarily involving text messaging and visits by Mr. Adams to 5 the sporting events of the complainant’s son (R 224-227). A pattern had developed where the complainant would sometimes answer, but sometimes ignore, text messages received from Mr. Adams (R 226, 237, 244). On Sunday, September 20, 2009, around 1:00 p.m., Keith Adams attended, with the complainant’s knowledge and permission, her son’s youth football game. Although Mr. Adams sat near the complainant, they did not converse during the first half of the game. The complainant was speaking with others, both in person and on her cell phone. According to the complainant, Mr. Adams left abruptly at half-time (R 226-230, 234). During the second half, the complainant received two text messages from Mr. Adams (R 230-232): (2:45 p.m.) “Aint nuttin honorable bout u. Ur a cock suckin easy slut, who has let street niggas fuck u by da dozens like D Hollis” (R 232). (3:13 p.m.) “U fucking common slut. Im putting ur flat ass on blast. Evrybody gonna no how easy ur ass is an how u suck dick until u almost catch an asthma attack. Tramp” (R 233). Neither of these text messages provoked the complainant to send a reply text to Mr. Adams. After the football game, she drove herself home (R 234, 251, 256). Later, she received a third text message: (6:57 p.m.) “Now u got a reason 2 act like u don’t know me, u saggy titty whore” (R 234). 6 Once again, the complainant did not reply to Mr. Adams’ text message (R 263-264). Instead, about an hour later (7:56 p.m.), she called the supervising Rochester City Court Judge (Hon. Teresa D. Johnson) (R 235-236, 261). The complainant did so, because she intended to sign a criminal complaint that would be filed in Rochester City Court (“it was going to create a conflict and someone would have to be notified”) (R 236). Thereafter, the complainant called the 911. At around 8:50 p.m., Officer Daniel Hogg was dispatched to the complainant’s house. Two other police officers also arrived (R 236, 256, 272-274). After speaking with the complainant, the trio, armed and in uniform, proceeded down the street to arrest Mr. Adams, arriving at his residence between 10:00 and 10:30 p.m. (R 151, 157, 161). The lights were on and music was playing, but no one answered the front door. Officer Hogg called Mr. Adams’ cell phone number. Mr. Adams was upstairs. He answered his cell phone, identified himself and agreed to come to the front door. He acknowledged to the three police officers that he had sent text messages to the complainant earlier that day. He allowed the three police officers to enter his home. He was very cooperative. The police handcuffed him and took him to jail (R 154, 159, 275-277). The complaint, filed in Rochester City Court, was labeled “domestic” and “in-custody” and was stamped with “Confidential Information, Civil Rights Law 7 Section 50 (b)” (even though the complainant was not claiming to be the victim of a sex offense under Penal Law Article 130) (R 12-13). On Monday morning, the arraignment took place in Monroe County Court with the Honorable Frank P. Geraci, Jr., sitting as a Local Court Judge. The Monroe County Public Defender was assigned to represent Mr. Adams. All of the Rochester City Court Judges had recused themselves. Judge Geraci issued a stay- away order of protection and adjourned the matter until 2:00 p.m. to get a report from Pre-Trial Release Services (R 62-67). After confirming an alternate address where Mr. Adams could live and re-stating the terms of the non-family order of protection, Judge Geraci released Mr. Adams to a pre-trial release program (the Day Reporting Center) (R 67-72, 74). On the next court date (two days later), defense counsel requested that Mr. Adams’ release program be downgraded (as recommended by Pre-Trial Release Services) to Enhanced Supervision. The People responded that the victim was concerned for her own safety and wanted Day Reporting to continue. The People also requested that electronic home monitoring be added as a condition of release and that the court order Mr. Adams to get a mental health evaluation or submit to a CPL 730 exam. Judge Geraci denied the People’s requests and downgraded the release program to Enhanced Supervision. The People then stated that the 8 complainant also wanted orders of protection for her two sons because she feared for their safety as well and offered to provide the court with their names and dates of birth. Stating that an order of protection for the two children was not appropriate, Judge Geraci denied the People’s request, advising Mr. Adams to continue his participation in a counseling program and to give updated reports of his progress to Enhanced Supervision (R 74-80). Roughly six months later (March 9, 2010), Mr. Adams’s release reporting status would be further downgraded (as recommended by Pre-Trial Services and with the People’s consent) to straight Pre- Trial Release Supervision (R 143). In Monroe County Court, the case was adjourned three times (R 82-84, 86- 87, 89-91) “to see if there might be an easy resolution of the matter” (R 90). It became clear that no reduced-plea offer was forthcoming, so, on November 18, 2009, defense counsel requested Judge Geraci to transfer the case back to Rochester City Court (R 89-90). A visiting judge from neighboring Wayne County (Hon. Stephen D. Aronson) would preside (R 93). Defense counsel advised Judge Aronson that the Monroe County District Attorney was not “in a position to make any offer at this point other than a plea to the charges” and, therefore, requested an adjournment to file motions (R 95). The defense filed omnibus motions, including a request for the appointment of a special 9 prosecutor (R 17-36). Judge Aronson ruled that City Court was the wrong forum for making an application for the appointment of a special prosecutor, denying the City Court motion without prejudice to a re-filing of the motion in superior court (R 113). Having a legal duty to appear before the complainant-judge in criminal cases involving indigent defendants, the Monroe County Public Defender (as well as the Monroe County Conflict Defender) requested the assignment of other counsel for Mr. Adams, citing conflicting duties - a duty to Mr. Adams to vigorously cross- examine the complainant-judge (perhaps attacking her credibility) and a duty to other indigent clients to seek favorable treatment from this same complainant- judge. Judge Aronson granted the request (R 28-29, 112). A Wayne County attorney was assigned to represent Mr. Adams, initially Peter G. Chambers (R 118, 131-132), then P. Adam Militello) (R 167-169). The Motion for a Special Prosecutor Returning to Monroe County Court, Mr. Adams asked for the Monroe County District Attorney to be disqualified from prosecuting the case against him. Mr. Adams requested the court to determine the disqualification issue on the papers, or, in the alternative, to order a hearing and, thereafter, to appoint a District 10 Attorney from another county or a private attorney to represent the People of the State of New York on this particular case (R 49-56, 131-134). Specifically, the motion papers stated that: “Prior to the alleged conduct, Judge Dixon and Mr. Adams were in a relationship. Mr. Adams has never appeared in court before Judge Dixon. There is no indication that Mr. Adam’s [sic] alleged conduct is in any way related to any official action taken by Ms. Dixon in her role as City Court Judge. By all indications, the alleged conduct constitutes an isolated incident. Mr. Adams is alleged to have sent a total of only three messages to Ms. Dixon. These are alleged to have occurred on a single day and there is no indication that these messages constitute an ongoing pattern of harassing conduct by Mr. Adams.” (R 52) (Affirmation by Peter Chambers, Esq.). Additionally, the motion papers included an Affirmation from Mr. Adams’ original defense attorney (Special Assistant Public Defender John Bradley): “[T]he Monroe County District Attorney’s Office and the Public Defender’s Office should be substituted in this matter. Both of these offices appear before Judge Dixon on the vast majority of cases over which she presides. She is responsible for deciding legal disputes between the two offices may [sic] times a day on motions, hearing, sentencing negotiations, and countless other matters. This office is in the position of potentially cross examining her, with all of the negative implications and accusations that may entail, and then the next day asking her to rule in our favor or show mercy to our clients. The District Attorney’s office is in a different situation. They are essentially on her side, prosecuting her complaint. However, their position becomes much more prejudicial to Mr. Adams. Because of her position they treat Judge Dixon much differently than they would any other complainant, and as a result are prosecuting Mr. Adams much differently that [sic] any other defendant. The District 11 Attorney’s Office, like the Public Defender’s Office, appears before Judge Dixon on dozens of cases each day, and for the same reasons would prefer not to engender any hostility from her. But, unlike our office, which is put in a direct adversarial position with the Judge as a witness, the District Attorney’s office is forced to be an advocate for her, beyond what they would normally do were she not a judge. In this case the defendant is a forty seven year old man with no criminal history and an impressive background, as shown by his resume, attached … In any other case, the District Attorney’s Office would have offered an ACD or violation with an Order of Protection. However, the ADA assigned to this matter has said that after speaking with the complainant, they would make no offer. In my twelve years of experience handling criminal cases in this county, I have never seen a similarly situated defendant receive no offer of an ACD or Violation. The District Attorney’s office clearly feels constrained in how they handle this matter due to the position of the complainant.” (R 28-29, 53-54). Finally, defense attorney Peter Chambers alleged that: “On January 29 th , 2010, I spoke with the ADA regarding a possible resolution to this case. I offered that Mr. Adams plea to Harassment in the Second Degree with the understanding that the Court would issue a stay-away Order of Protection and would order him to complete 40 hours of community service and receive psychiatric treatment until clinically discharged. The ADA indicated that in most cases this would be an adequate resolution of the case, but that due to the position of the victim, the offer was rejected. I also spoke to Ms. Dixon that day, who after declining to discuss the details of the case indicated that she was ‘not willing to reduce the charges’ and ‘wanted to go to trial.’ It is respectfully submitted that the District Attorney’s office is in a conflict of interest position; to wit: By giving undue weight to the wishes of the victim in screening their case, the District Attorney’s office is no longer acting as a fair and impartial official. The effect has been an actual and tangible prejudice to Mr. Adams.” 12 (R 55). In addition to “actual prejudice,” defense counsel argued that the Monroe County District Attorney should be disqualified for a conflict of interest that created an “appearance of impropriety” (citing Code of Professional Responsibility Canons 5 and 9), undermining “the court’s confidence in the vigor of the attorney’s representation of his client” (R 55). Defense counsel argued that the Monroe County District Attorney could not appear to be a disinterested decision-maker if it also appeared that he had, or was under the influence of someone who had “an ax to grind against the defendant as distinguished from the appropriate interest that members of society have in bringing a defendant to justice with respect to the crime [for] which he [was] charged” (R 56). The People responded (by affirmation from Matthew Rich, the Supervisor of the Local Courts Bureau). Mr. Rich stated that he “met with the victim in person on February 5, 2010. During that meeting, she reiterated her desire that the matter be prosecuted to the fullest extent of the law. She explained that she was and remains fearful of the defendant and that she held the opinion that the defendant would continue to contact her in and [sic] offensive and/or harassing manner unless he was held accountable for his actions on the date in question” (R 59). 13 Mr. Rich stated further that the People’s “no-reduced-plea-offer” position was solely based upon two factors - the complainant’s “willingness to testify” and the strength of the case: “My evaluation of the evidence indicates that the defendant committed these acts. The victim has indicated a desire and a willingness to assist in the prosecution of this matter, including a willingness to testify at trial. Based on these factors, it is my position as a duly appointed assistant to the elected District Attorney that the ends of justice are served by the position I have taken on behalf of the People . . . The defendant makes much of his lack of criminal record, his academic background, community ties and medical difficulties. These are factors to be considered in terms of sentencing, certainly, but are completely irrelevant in terms of whether or not the Monroe County District Attorney’s Office should continue to prosecute this case.” (R 60). The People’s response was completely silent concerning two other factors – the “seriousness” of the conduct and the expense of litigation (R 57-61). Thereafter, the Monroe County Court (Hon. Patricia D. Marks) denied Mr. Adams’ motion for the appointment of a special prosecutor. The court ruled: (1) that a defendant must allege “actual prejudice” before a special prosecutor may be appointed; (2) that the defendant’s failure to get a plea bargain cannot establish actual prejudice; and (3) that since “the policy of the District Attorney’s Office [was] to follow the law at issue in almost every case,” that the defendant’s case was not “being treated any differently from other cases.” The County Court failed 14 to order a hearing to resolve whether Mr. Adams was being treated differently from other similarly-situated defendants (R 131-134). One Last Effort The visiting judge attempted to broker a settlement of the case. On April 6, 2010, before the Huntley hearing, the following exchange took place: THE COURT: All right. So everybody ready to go forward on this hearing? MR. RICH: Yes, Your Honor. Just so you know, I did what you asked me, I called the complaining witness on this case and talked about what we had discussed. And, as I had indicated, I expected she wasn’t amenable to any sort of a type of a disposition that we had discussed. THE COURT: It was worth a try and I appreciate your asking. MR. RICH: Sure. THE COURT: Sometimes these folks have strong feelings about it. And, obviously, she does. So we certainly understand that. Okay. So do you have any witness to call? MR. RICH: I do, your honor (R 148). The Verdict & Sentence At the two-day jury trial (08/02/2010-08/03/2010), the People called the complainant and Officer Hogg. The complainant acknowledged that Mr. Adams 15 had made no contact with her since the date of the text messages (09/20/2009) (almost eleven months) (R 64). In his own defense, Mr. Adams testified (R 279- 296). The jury convicted him of second-degree aggravated harassment. 1 The visiting judge immediately sentenced Mr. Adams to a one-year conditional discharge and an order of protection. No community service or psychiatric treatment was ordered (R 330-331). The Appeal On October 26, 2011, by Decision and Order, the Monroe County Court (Hon. Vincent M. DiNolfo) affirmed Mr. Adams’ judgment of conviction (R 5-9). On April 24, 2012, the Honorable Theodore T. Jones granted Keith Adams leave to appeal. Mr. Adams now raises three issues of law. Point I argues that the mandatory legal relationship between the complainant-judge and the county district attorney was a per se conflict of interest. In this rare case, the appearance of impropriety, standing alone, required the county district attorney to be disqualified. Mr. Adams was not required to show any actual prejudice. 1 After opening statements, the People only went forward with second-degree aggravated harassment under Penal Law § 240.30 (1) (a), withdrawing a second count that had charged a violation of Penal Law § 240.30 (1) (b) (R 219). 16 Point II argues that Mr. Adams did suffer actual prejudice arising from a demonstrated conflict of interest. The record shows actual impropriety based upon the Monroe County District Attorney’s plea-bargaining posture (where the county district attorney improperly allowed the wishes of the complainant-judge to unduly influence the county district attorney’s exercise of prosecutorial discretion). Point III argues that the motion court should have ordered a hearing to determine whether the Monroe County District Attorney was treating Mr. Adams more severely than other similarly-situated defendants. 17 POINT I: THE MANDATORY LEGAL RELATIONSHIP BETWEEN THE PROSECUTOR (THE MONROE COUNTY DISTRICT ATTORNEY) AND THE COMPLAINANT (A SITTING ROCHESTER CITY COURT JUDGE) CREATED A PER SE CONFLICT OF INTEREST (THE APPEARANCE OF IMPROPRIETY ITSELF). THE MOTION COURT ERRED BY REFUSING TO GRANT THE DEFENDANT’S REQUEST FOR A SPECIAL PROSECUTOR. A. Introduction County Law § 701 (1) authorizes the appointment of a district attorney from another county (or a private attorney) to represent the People of the State of New York whenever a district attorney is “disqualified from acting in a particular case.” The statute does not define any specific reasons for disqualification. “Disqualification” occurs when a “conflict of interest” exists. A wide variety of fact patterns and relationships (fiduciary, family, friendship, financial, professional, etc.) may create a disqualifying conflict of interest. “The courts, as a general rule, 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 and the appearance of impropriety, standing alone, might not be grounds for disqualification. The objector should demonstrate actual prejudice or so substantial a risk thereof as could not be ignored. The Federal courts have adopted similar rules. They have held that there may be disqualification for the appearance of impropriety (1) if an attorney’s conflict of interest in violation of canons 5 [‘A Lawyer should exercise independent professional judgment on behalf of a client’] and 9 [‘A Lawyer should avoid even the appearance of professional impropriety’] of the Code of 18 Professional Responsibility undermines the court’s confidence in the vigor of the attorney’s representation of his client . . .” (Matter of Schumer v Holtzman, 60 NY2d 46, 55 [1983] [citations omitted, emphasis added]). Specifically citing ethical canons 5 and 9, Keith Adams moved for a special prosecutor based upon an appearance of impropriety (R 55-56). As a matter of law, the complainant’s status as an active judge, presiding over criminal cases in the same county where her criminal complaint was filed, created a per se conflict of interest. This conclusion begins with a simple premise - that a person accused of committing a crime has a right to be prosecuted by an impartial advocate for the People of the State of New York, someone unhampered by any conflict of interest, real or apparent. Derived from the unique role played by a public prosecutor in the criminal justice system, constitutional protections for a defendant (due process, fundamental fairness, equal protection), ethical standards for attorney conduct and sound public policy, this simple premise has been effectively ignored by the People, the motion court and the lower appellate court. 19 B. The Role of the District Attorney A public prosecutor “is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done” (Berger v United States, 295 US 78, 88 [1935]). “Unlike the many attorneys who represent the interests of private citizens, the District Attorney’s client is the people of the State of New York” (Matter of Curry v Hosley, 86 NY2d 470, 473 [1995] [holding that “the legal nature of the important public responsibilities entrusted to the District Attorneys of this State requires that such individuals be lawyers admitted to practice”]). This client (the “people”) is a comprehensive category that includes both the defendant and the complainant. A public prosecutor “must never lose sight of the fact that a defendant, as an integral member of the body politic, is entitled to a full measure of fairness” (People v Zimmer, 51 NY2d 390, 393 [1980]). Stated yet another way, a public prosecutor “is a quasi judicial officer, representing the people of the state, and presumed to act impartially in the interest only of justice” (People v Fielding, 158 NY 542, 547 [1899]). This “presumption” of impartiality is the bedrock principle that justifies a public prosecutor’s 20 tremendous, discretionary power to decide how a criminal case should be handled. In theory and in practice, this flexibility, this broad discretion (to investigate, initiate, prosecute or discontinue) merits “the observation that, overall, more control over individuals’ liberty and reputation [is] vested [in a public prosecutor] than in perhaps any other public official” (People v Zimmer, 51 NY2d 390, 393 [1980]). Consequently, the general public must never doubt that a county district attorney (like a judge) will be disinterested and will act impartially (see also People v DiFalco, 44 NY2d 482, 487 [1978] [The District Attorney has “substantial control over the Grand jury proceedings, requiring the exercise of completely impartial judgment and discretion”). Accordingly, anything that tends to undermine this presumption of impartiality will also undermine public confidence in the fairness and integrity of the criminal justice system. If the bedrock of impartiality crumbles, the prosecutor’s discretionary power must collapse. C. The Appearance of Impropriety The exception to the general “actual prejudice” rule for disqualification has been consistently applied where the conflict of interest directly affects the actual prosecutor’s image of impartiality. “Whether actual prejudice has been established is immaterial. The role of the public prosecutor is not merely to convict but to foster the 21 trust of the public in the criminal justice system. In fulfilling that function it is essential that a prosecutor avoid even the appearance of impropriety.” (People v Baker, 99 AD2d 656 [4th Dept 1984] [indictment for first-degree sodomy dismissed where the prosecutor who presented the case to the grand jury was revealed at trial to be the stepmother of a corroborating witness and a friend of the two young victims]). In People v Zimmer (51 NY2d 390 [1980]), this Court reversed the defendant’s felony convictions and dismissed the indictment because the Hamilton County District Attorney was counsel to and a stockholder of the victim corporation. “Moreover, even if the actuality or potentiality of prejudice were absent, what of the appearance of things (see Code of Professional Responsibility, Canon 9)? No matter the good faith and complete integrity of the District Attorney, under these circumstances, what impression could the defendant have had of the fairness of a prosecution instituted by one with the personal and financial attachments of this prosecutor? Would it have been unreasonable for the defendant or others to doubt that the public officer, whose burden it was to screen the complaint for frivolousness and, if necessary, guide its destiny before the Grand Jury, would do so disinterestedly?” (People v Zimmer, 51 NY2d at 395 [emphasis added]; see also People v Shinkle, 51 NY2d 417 [1980] [executive director of Legal Aid Society actively represented defendant, but was appointed Chief Assistant District Attorney while the prosecution was still pending; conviction vacated despite the People’s efforts to 22 “insulate” the defendant’s former attorney from the continued prosecution]; People v Schrager, 74 Misc2d 833 [Sup Ct, Queens County 1973] [District Attorney’s motion for a special prosecutor was granted because the defendant was an assistant district attorney]). D. The Mandatory Legal Relationship Between a County District Attorney and a Sitting Criminal Court Judge Given the close connection between a county district attorney and a complainant-judge, the general public (including Mr. Adams) may reasonably doubt whether the county district attorney, when exercising prosecutorial discretion, can or will remain completely impartial and disinterested. Unless “disqualified from acting in a particular case,” the Monroe County District Attorney, an elected constitutional officer, has a statutory duty “to conduct all prosecutions for crimes and offenses cognizable by the courts of” Monroe County, including Rochester City Court (County Law § 701 [1]). The office of the Monroe County District Attorney is a full-time position (County Law § 700 [8]). The District Attorney retains supervisory authority over his or her assistants as well as ultimate responsibility for the exercise of prosecutorial discretion (whom, whether and how to prosecute) (Matter of Schumer v Holtzman, 60 NY2d at 52- 53). 23 Unlike a private attorney, the Monroe County District Attorney (through his or her assistants) cannot practice law in a manner that avoids appearing before the complainant-judge in her judicial capacity. This active, mandatory, professional relationship touches upon the county prosecutor’s full-time livelihood and daily duties. This connection works both ways. A Rochester City Court Judge, also an elected constitutional officer, must preside over criminal cases prosecuted by the Monroe County District Attorney. During the entire prosecution of the case against Mr. Adams, assistant district attorneys, all subordinates of the Monroe County District Attorney, appeared before the complainant-judge, handling many hundreds of cases per year. The complainant-judge’s full-time occupation required close contact with the Monroe County District Attorney on virtually every criminal case in her courtroom (except for a few cases handled by the New York Attorney General or a special prosecutor). This Court has recognized the broad authority that trial courts have over the attorneys in their courtrooms. For example, in Matter of Balter v Regan (79 NY2d 938 [1992]), this Court sustained a contempt finding against a criminal defense attorney for disobeying a court order where the defense attorney believed that obeying the order would be an ethical violation. On appeal, the issue was not 24 whether the trial judge’s specific order was right or wrong, but whether the attorney had authority to disobey it. This Court said no (see also Matter of Brostoff v Berkman, 79 NY2d 938, 940 [1992] [affirming a summary contempt adjudication against a prosecutor who “willfully refused to exit the well area after an explicit and unambiguous order to do so”]). Busy criminal court judges will make numerous discretionary decisions, granting or denying attorney requests on legal matters and administrative issues (setting deadlines, granting extensions, scheduling future court dates, etc.). This broad, discretionary judicial power creates a clear incentive for attorneys who must practice law in a judge’s courtroom to stay on that judge’s good side. Quite naturally, most attorneys will try to curry favor, or at least avoid disfavor, from the presiding judge. The general public understands this dynamic (“curry-favor/avoid- disfavor”). E. The Per Se Conflict of Interest Rule The facts of Mr. Adams’ case support adopting a per se conflict of interest rule, rather than following a case-by-case “actual prejudice” analysis. The close, mandatory legal relationship between the Monroe County District Attorney and the complainant-judge, standing alone, created an appearance of impropriety, a real danger that the general public (including the defendant) would perceive that close 25 relationship as improperly influencing the Monroe County District Attorney’s exercise of prosecutorial discretion (see also Commentary to the ABA Standards, Prosecution Function, § 3-1.2: “It is of the utmost importance that the prosecutor avoid participation in a case in circumstances where any implication of partiality may cast a shadow over the integrity of the office”]). Here, a dark shadow has been cast. Mr. Adams was justifiably concerned that he would be prosecuted more vigorously than a “regular” defendant based upon the dual relationship between the Monroe County District Attorney and the complainant-judge. Arguably, even the reverse situation could cause an appearance of impropriety. For example, in People v Rocci (184 Misc2d 670 [Utica City Court 2000]), the court found a disqualifying conflict of interest, based upon the “appearance of impropriety” where the complainant may have perceived that the prosecutor would not prosecute the case vigorously enough. In Rocci, it was clear that the defense would call an assistant district attorney as a favorable witness, but neither the defense nor the prosecution made a motion for a special prosecutor. Even though the Oneida County District Attorney would have to cross-examine one of his own assistants, he “refuse[d] to believe that the case cannot be vigorously prosecuted” (184 Misc2d at 673). Despite this subjective belief, the court disqualified the 26 entire office and sent a request to the Oneida County court for the appointment of a special prosecutor. “Here the appearance of impropriety is quite apparent in that the district attorney may not forcefully pursue prosecution of this case due to its own assistant district attorney being the possible main witness for the defense. The possibility of complainant’s consternation in such event must be taken into consideration and in this instance necessitates disqualification.” (People v Rocci, 184 Misc2d at 673). For Mr. Adams’ case, the per se conflict of interest rule would be as follows: When an active judge, presiding over criminal cases in a particular county, is the complainant in a criminal action against a defendant in that same county, upon request, a special prosecutor should be appointed. Prosecutors should welcome this rule. It fosters public confidence in the criminal justice system and helps prosecutors avoid possible no-win situations. For example, if a prosecutor does not handle a judge’s complaint in the exact manner requested by the judge, the prosecutor may face judicial backlash on other matters pending before the judge. If a prosecutor succumbs to judicial pressure, consciously or unconsciously, then the prosecutor fails to act as an impartial decision-maker. The appointment of a special prosecutor under a per se rule solves this dilemma. The county district attorney can show the complainant-judge a pair of clean hands, arguing that a special prosecutor was required or else the 27 defendant’s future conviction would be reversed on appeal. A fair-minded judge should have no problem with a prosecutor from an adjacent county handling the complaint. A fair-minded complainant-judge should recognize that, for the sake of appearance, if nothing else, a defendant’s request for a special prosecutor should be granted. The general public (including the defendant) should also welcome a per se conflict of interest rule under these facts because it reduces suspicions of undue judicial interference with the exercise of prosecutorial discretion. Another problem, the perceived risk of a rogue prosecutor overzealously pursuing a defendant’s conviction to curry favor with a complainant-judge, would also be lessened. Public confidence in the actions of the prosecutor would be increased by reducing improper motives for prosecution and the problem of judicial backlash. The general public should not fear that a prosecutor takes marching orders from a complainant-judge. The risk of this public perception is significantly reduced where the prosecutor handling the judge’s complaint is not required, by law, to prosecute other cases before that same judge. The Monroe County District Attorney has never explained why it was so important to prosecute this non-violent, private misdemeanor (three text messages) rather than (1) making a reduced-plea offer or (2) allowing the Wayne County 28 District Attorney to handle the case (since the defense attorney and the trial judge were from Wayne County) (see Baez v Hennessy, 853 F2d 73, 77 [2d Cir 1988] [“When prosecuting a criminal matter, a district attorney in New York State, acting in a quasi-judicial capacity, represents the State not the county”]; McGinley v Hynes, 51 NY2d 116 [1980]); contrast Walker v City of New York, 974 F2d 293, 301 [2d Cir 1992] [“Where a district attorney acts as the manager of the district attorney's office, the district attorney acts as a county policymaker”]). F. Other Public Policy Matters On balance, even the “cost” factor favors a per se conflict of interest rule in this setting. In Mr. Adams’ case the conflict of interest relates to the county district attorney, not to the individual assistants. For example, in one unreported case (People v Gonzalez, 30 Misc3d 1221[A], 2011 WL 505024 [Sup Ct, Kings County 2011]), the complainant was the sister of a high-ranking assistant, but the court denied the motion for a special prosecutor. The individual assistant handling the defendant’s case was insulated from the complainant’s brother (a different assistant) by the large size of the District Attorney’s office (the case assistant had never met or spoken with the other assistant). In Gonzalez, the court was concerned with cost. “There are hundreds of assistants in the district attorney’s office. If removal of the office were required 29 each time a complainant or defendant was related to one of them, the cost in time to the criminal justice system and money to the citizenry would be extensive. This is why appointments of special prosecutors require actual, palpable, factual prejudice and cannot be based on surmise or conjecture” (People v Gonzalez, 30 Misc3d 1221[A], 2011 WL 505024 [Sup Ct, Kings County 2011]). In Mr. Adams’ case, however, it was the Monroe County District Attorney who had the constitutional and statutory obligation (personally or through delegation) to appear before the complainant-judge. The Monroe County District Attorney, being ultimately responsible for the exercise of prosecutorial discretion by the assistants, simply could not be “insulated” from the conflict of interest in any manner that would protect the defendant’s right to impartial prosecution. The monetary “cost” of disqualifying the Monroe County District Attorney for an objective appearance of impropriety would be limited by the focused nature of the conflict (involving only the county district attorney, not the individual assistants) and by the finite number of sitting criminal court judges within Monroe County who could become complainants. No floodgates will open. Further, the “cost” of an impartial special prosecutor must be balanced against the “cost” of the Monroe County District Attorney’s refusal to make a reduced-plea offer - a Huntley hearing, a jury trial and an appeal. Unhampered by 30 any conflict of interest (actual or apparent), a special prosecutor may very well have resolved this case with Mr. Adams’ guilty plea to a non-criminal offense and imposition of the same sentence that Mr. Adams actually received immediately after the jury rendered its guilty verdict (a one-year conditional discharge with a stay-away order of protection). Finally, any monetary cost involved with the appointment of a special prosecutor must be balanced against the societal cost involved when a refusal to appoint a special prosecutor undermines public confidence in the impartiality of the criminal justice system. G. Summary In Mr. Adams’ case, the exception to the general “actual prejudice” rule should be applied. The strong “appearance of impropriety” (a clear, objective, unavoidable conflict of interest), standing alone, was a valid ground for disqualification. On its face, the mandatory legal relationship between the Monroe County District Attorney and the complainant-judge was inherently prejudicial to Mr. Adams (as the defendant in the judge’s complaint) and constituted, as a matter of law, a disqualifying conflict of interest for the Monroe County District Attorney. For the above-stated reasons, Mr. Adams due process rights were violated (US Const, Amend V; NY Const, art I, § 6). He respectfully requests an order 31 reversing his conviction and directing the Monroe County Court to appoint a special prosecutor (County Law § 701 [1]). 32 POINT II: BASED UPON THE WISHES OF THE COMPLAINANT (A SITTING ROCHESTER CITY COURT JUDGE), THE MONROE COUNTY DISTRICT ATTORNEY REFUSED TO OFFER THE DEFENDANT A PLEA TO A REDUCED CHARGE. THIS CONDUCT CAUSED ACTUAL PREJUDICE TO THE DEFENDANT ARISING FROM A DEMONSTRATED CONFLICT OF INTEREST. THE MOTION COURT ERRED BY DENYING THE DEFENDANT’S REQUEST FOR A SPECIAL PROSECUTOR. A. Introduction Before examining whether Keith Adams suffered actual prejudice from a demonstrated conflict of interest, the People’s “No-Constitutional-Right-to-a-Plea- Bargain” argument must be addressed. Citing Weatherford v Bursey (429 US 545 [1977]), the People have argued, and both lower courts agreed, that Mr. Adams did not have a “constitutional right” to a plea offer and, therefore, he cannot complain when the People refused to offer him a guilty plea to a reduced charge. But this argument misses the point. While Mr. Adams obviously disagreed with the decision (no reduced-plea offer), his specific argument was that the Monroe County District Attorney should not have been the decision-maker. B. The Paramount Importance of Plea Negotiation In Missouri v Frye, (__ US __, 132 S Ct 1399 [2012]), the defense attorney failed to communicate a formal, time-limited plea offer to the defendant. This prior offer was more favorable than the one ultimately accepted by the defendant. 33 On appeal, the defendant claimed ineffective assistance of counsel. Opposing the appeal, the State argued that a defendant has no “right” to a plea bargain (citing Weatherford v Bursey, 429 US 545 [1977]) and “therefore was not deprived of any legal benefit to which he was entitled. Under [the State’s] view, any wrongful or mistaken action of counsel with respect to the earlier plea offers [was] beside the point” (132 S Ct at 1406). The State also argued “unfairness” (that it would be unfair to visit the sins of the defense attorney upon the State). The United States Supreme Court noted that the State’s arguments (“No- Constitutional-Right-to-a-Plea-Bargain” and “unfairness”) were “neither illogical nor without some persuasive force” (132 S Ct at 1407). Nevertheless, the Court found that these specific arguments did not overcome a simple reality. “Ninety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas . . . Because ours ‘is for the most part a system of pleas, not a system of trials,’ it is insufficient simply to point to the guarantee of a fair trial as a backstop that inoculates any errors in the pre-trial process. ‘To a large extent . . . horse trading [between prosecutor and defense counsel] determines who goes to jail and for how long. That is what plea bargaining is. It is not some adjunct to the criminal justice system, it is the criminal justice system’ . . . [Today], therefore, the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant” (132 S Ct at 1407 [citations omitted]; see also Lafler v Cooper, __ US __, 132 S Ct 1376, 1384 [2012] [“Defendants have a Sixth Amendment right to counsel, a right that extends to the plea-bargaining process”]). 34 By arguing that a defendant cannot legally coerce the People into making a specific plea offer, the People attack the wrong issue. By requesting a special prosecutor, Mr. Adams challenged the impartiality (in appearance and in actuality) of the decision-maker (the Monroe County District Attorney), not the decision itself. In other words, Mr. Adams did not ask the motion court to order the county prosecutor to make a reduced-plea offer. It may be that a special prosecutor would make the same decision as the Monroe County District Attorney. Then again, with no obligation to appear before the complainant-judge, a special prosecutor may very well make a different decision. C. The Demonstrated Conflict of Interest The record shows more than a conflict of interest based upon the appearance of impropriety itself. Actual impropriety took place. The Monroe County District Attorney acted not as a quasi-judicial officer, representing the general public, a client that includes both the defendant and the complainant, but as constitutional officer who was ostensibly under the control of, or unduly influenced by, another constitutional officer (a sitting Rochester City Court Judge). D. The Actual Prejudice to the Defendant Based upon the county prosecutor’s close, professional relationship with the complainant-judge, Keith Adams, as a matter of law, suffered actual prejudice in 35 two respects. First, when making the no-reduced-plea-offer decision, the county prosecutor (through his Supervisor of the Local Courts Bureau) improperly used only two plea-bargaining factors (the strength of the evidence and the complainant’s willingness to prosecute), ignoring at least three other standard factors. Second, the county prosecutor effectively and improperly delegated his decision-making authority to the complainant-judge. For Mr. Adams, the primary concern was avoiding a criminal conviction. For a well-educated, forty-seven-year-old man with a pristine record, an adjournment in contemplation of dismissal (ACD) or a guilty plea to a violation would have been a great benefit. The defense attorney sought a reduced-plea offer (disorderly conduct) with a specific proposed sentence (R 55), clearly indicating that Mr. Adams would have accepted this disposition. Indeed, sentencing was never really an issue. In this regard, several observations should be made. First, the complainant-judge would not agree to any reduced-plea offer (R 55), but nothing in the record shows that she sought a specific sentence. Second, after the guilty verdict, the People made no requests for any specific sentence. Upon discharging the jury, the visiting trial judge asked the trial prosecutor whether she moved the case for sentencing. She did. When asked whether she wished to be heard concerning sentencing, very commendably, the 36 trial prosecutor stated that she had “[n]othing further to add” (R 329). Third, Mr. Adams actually received a better sentence after the guilty verdict than his attorney had proposed as part of a guilty plea to a violation (disorderly conduct). Mr. Adams was not given the forty hours of community service or the psychiatric treatment that had been proposed by his attorney during plea negotiations (R 55). Given that sentencing was never a primary concern for anyone and was a matter of judicial (not prosecutorial) discretion, the People’s no-reduced-plea-offer stance (requiring Mr. Adams to be branded as a criminal for sending these text messages) was taken to advance the personal interests of the complainant, not the broader interests of the general public. E. Justifying the Unjustifiable The People have failed to provide any satisfactory explanation for their no- reduced-plea-offer posture. Chanting the mantra of “prosecutorial discretion” provides no answer. Two troubling questions emerge. First, when deciding whether to make a reduced-plea offer, did the People shirk their responsibility to consider all relevant plea-bargaining factors? Second, did the People delegate to the complainant-judge their non-delegable authority to make the plea-offer decision? 37 F. Plea-Bargaining Factors Used and Not Used On the first question posed above, the record is clear. The People argued that two considerations justified their position - the strength of the case and the complainant’s willingness to testify. The People failed to address the complainant’s willingness or unwillingness to go along with a reduced-plea offer. The People expressly and erroneously argued that Mr. Adams’ complete lack of any criminal history (at age forty-seven), as well as his academic background, community ties and medical difficulties, were irrelevant. But this factor is critical to the idea of individualized justice. Mr. Adams’ education, volunteer work and lack of criminal record should have been considered extremely important factors to consider, not brushed away as “irrelevant.” The stigma of a criminal conviction weighs especially heavy on someone like Mr. Adams, poisoning his future employment opportunities. In this case, the county prosecutor simply turned a blind eye to fundamental fairness (Matter of Hynes v Tomei, 92 NY2d 613, 624-625[1998] [“Plea bargaining serves important functions for both prosecutors and defendants, such as individualized justice, leniency and economy]). Incredibly, the People ignored perhaps the most important factor of all - the “seriousness” of the conduct (three text messages containing admittedly offensive 38 language, but no threats of violence or physical injury). These text messages were sent to a neighbor and ex-lover over the course of a few hours on a single day. The communication was strictly private and personal in nature, unrelated to any Rochester City Court ruling or court proceeding. The accuser had filed no prior complaints against the accused and had given him no warning to stop sending text messages. No public harm was identified. In People v Urbaez (10 NY3d 773, 775 [2008]), this Court recognized that valid reasons for offering a reduced charge include the seriousness of the charges, a defendant’s criminal history and any prior relationship with the alleged victim. In Urbaez, the defendant was charged with second-degree aggravated harassment based upon “a telephone call to the mother of his two teenage boys in which he threatened to withhold payment of child support, beat her, knock her teeth out and break her face” (10 NY3d at 774 [emphasis added]). Over defense objection, the prosecutor reduced the charge to attempted second-degree aggravated harassment (a class B misdemeanor, authorizing a bench trial) and then renewed a prior plea offer of second-degree harassment (a violation) with an order of protection (10 NY3d at 774). Rejecting the plea offer, the defendant went to trial and was convicted. “The judge, in turn, recognized the relatively non-serious nature of the crime when she sentenced defendant to a conditional discharge” (10 NY3d at 775). 39 Ironically, if Mr. Adams had communicated the same offensive language to the complainant-judge personally, rather than via text message, the communication might not even qualify as simple harassment (a violation) (see People v Dietze, 75 NY2d 47 [1989]; contrast People v Shack, 86 NY2d 529 [1995]; People v Duran, 25 Misc3d 1210 [A], 2009 WL 3199214 [NY City Crim Ct 2009] [an unreported case discussing text messaging and the First Amendment]). Finally, the People ignored the expense of litigation as a plea-bargaining factor, shirking its responsibility to conserve scarce prosecutorial and judicial resources. As this Court recognized many years ago, “the volume of criminal prosecutions is so great that if full trials were required in each case New York’s law enforcement system would collapse” (People v Seaberg, 74 NY2d 1, 7 [1989]; People v Selikoff , 35 NY2d 227, 233 [1974]). Again, the public expense of the People’s failure to make a reduced-plea offer included the cost of a Huntley hearing, a jury trial and an appeal. G. The Improper Delegation of Prosecutorial Discretion On the second question posed above, the record is also clear. Numerous times, the People approached the complainant-judge to see whether she would, in effect, authorize a reduced-plea offer. Numerous times, she said no. Basically, the People gave the complainant-judge veto power over any reduced-plea offer. As 40 stated in the defense attorney’s affirmation: Judge Dixon stated that she was “not willing to reduce the charges” and “wanted to go to trial” (R 55). The People’s obedience to the wishes of Judge Dixon, under the facts of this case, was improper. For statutory and sound public policy reasons, the law does not allow complainants to prosecute defendants. That power belongs to public prosecutors (see e.g. Matter of Sedore v Epstein, 56 AD3d 60 [2d Dept 2008] [improper to delegate harassment prosecution to a private attorney retained by the complainant]; Kinberg v Kinberg, 48 AD3d 387 [1st Dept 2008] [wife’s petition to have husband jailed for perjury dismissed]; People v Robinson, 27 Misc3d 635 [Sup Ct, Kings County 2010] [New York Legal Assistance Group’s motion to formally represent the complaining witness is denied]). An accuser’s conflict with an accused is simply too partisan and often too personal. Prosecutorial discretion can only be exercised by an impartial, conflict-free representative of the People of the State of New York. H. Summary As a matter of law, Mr. Adams suffered actual prejudice (no reduced-plea offer) derived from a demonstrated conflict of interest (the improper influence of the complainant-judge on the plea-bargaining posture of the Monroe County 41 District Attorney). The due process rights of Mr. Adams were clearly violated (US Const, Amend V; NY Const, art I, § 6). A special prosecutor, by not having an active, close, comprehensive relationship with the complainant-judge, could impartially assess Mr. Adams’ case (using all standard plea-bargaining factors) and determine whether a reduced-plea offer would serve the public interest. For all of the reasons stated above, Mr. Adams respectfully requests an order reversing his conviction and directing the Monroe County Court to appoint a special prosecutor (County Law § 701 [1]). 42 POINT III: THE MOTION COURT ERRED WHEN IT DENIED THE DEFENDANT’S REQUEST FOR THE APPOINTMENT OF A SPECIAL PROSECUTOR WITHOUT CONDUCTING ANY HEARING ON THE DEFENDANT’S ASSERTION THAT THE PROSECUTOR WAS IMPROPERLY TREATING HIM MORE SEVERELY THAN SIMILARLY-SITUATED DEFENDANTS. Keith Adams alleged that, because the complainant was a sitting Rochester City Court Judge, the Monroe County District Attorney was treating him differently (more severely) than other Rochester City Court defendants with similar backgrounds (forty-seven years old, no criminal history) and similar cases (sending text messages containing offensive language, but no threats of violence or physical injury). In response, the People simply stated that Mr. Adams “was being treated no differently” (R 60). The motion court summarily denied Mr. Adams’ request for a special prosecutor on the ground that “the policy of the District Attorney’s Office [was] to follow the law at issue in almost every case” (R 133). The motion court had no basis to rule, as a matter of law, that the Monroe County District Attorney was not treating Mr. Adams more severely than other similarly-situated Rochester City Court defendants. In fact, the court should have summarily granted Mr. Adams’ motion on the papers because the People failed to provide any facts to support their position (see e.g. People v Gruden, 42 NY2d 214 [1977]). 43 For instance, the People did not claim to have a blanket “no-plea- bargaining” policy for second-degree aggravated harassment cases. Further, the People did not cite even one example of a case where they refused to make a plea offer to a middle-aged defendant with no criminal history charged with a similar offense. In contrast, Mr. Adams’ original attorney (John Bradley, supervisor of the Rochester City Court section of the Monroe County Public Defender’s Office) alleged in his affirmation that, in twelve years of criminal practice, he had “never seen a similarly situated defendant receive no offer of an ACD or Violation” (R 29). This Court has stated that one “ignored imperfection in the criminal justice system is a difference in the treatment of similarly situated defendants that results from prosecutorial discretion” (People v Cahill, 2 NY3d 14, 96 [2003]). Indeed, the broad discretion that “society accords a prosecutor places a heavy responsibility upon him to treat all persons equally” (People v Eboli, 34 NY2d 281, 290 [1974]). Here, at the very least, the motion court should have ordered a hearing (see e.g. People v Cruz, 55 AD2d 921 [2d Dept 1977] [The record on appeal was insufficient to determine whether the defendant suffered actual prejudice. At a hearing, the People must establish what steps were taken to isolate 44 the attorney and what information, if any, he possessed or transmitted. The defendant will have the right to cross-examine the witnesses]). Mr. Adams respectfully requests an order reversing his conviction, remitting this matter to Monroe County Court and directing the Monroe County District Attorney to go forward at an evidentiary hearing with proof that Mr. Adams “was treated no differently” from other similarly-situated defendants. The People would possess the information necessary to justify their assertion of equal treatment of defendants (see County Law § 700 [7] [“The district attorney shall keep and preserve all records now or hereafter in his care or custody or under his control and all records, books and papers relating to the functioning of his office or the performance of his duties”]). 45 CONCLUSION THIS COURT SHOULD REVERSE KEITH ADAMS’ CONVICTION AND ORDER THE MONROE COUNTY COURT TO APPOINT A SPECIAL PROSECUTOR. ALTERNATIVELY, THE MATTER SHOULD BE REMITTED TO THE MONROE COUNTY COURT FOR AN EVIDENTIARY HEARING ON THE ISSUE OF “ACTUAL PREJUDICE.” Dated: June 20, 2012 Respectfully submitted, TIMOTHY P. DONAHER Monroe County Public Defender Attorney for Appellant _________________________ BY: DAVID R. JUERGENS Assistant Public Defender Of Counsel 10 N. Fitzhugh Street Rochester, New York 14614 (585) 753-4093