In the Matter of Working Families Party, Appellant,v.Fern A. Fisher,, et al., Respondents.BriefN.Y.April 29, 2014To be argued by: Morrie I. Kleinbart (15 minutes requested) Court of Appeals STATE OF NEW YORK In the Matter of the WORKING FAMILIES PARTY, Petitioners, For a judgment pursuant to Article 78 of the Civil Practice Law and Rules -against- HONORABLE FERN FISHER, et al. Respondents. BRIEF FOR RESPONDENT PRO SE DANIEL M. DONOVAN, JR. DANIEL M. DONOVAN, JR. DISTRICT ATTORNEY RICHMOND COUNTY Respondent Pro Se 130 Stuyvesant Place Staten Island, NY 10301 718-556-7010 MORRIE I. KLEINBART ASSISTANT DISTRICT ATTORNEY Of Counsel Date Completed: March 26, 2014 APL-2013-00322 TABLE OF CONTENTS TABLE OF CONTENTS ................................................................................... i TABLE OF AUTHORITIES .............................................................................. iii PRELIMINARY STATEMENT .......................................................................... 1 INTRODUCTION ............................................................................................. 2 SUMMARY OF ARGUMENT ........................................................................... 4 THE LITIGATION IN THE APPELLATE DIVISION ....................................... 6 THE PETITION ........................................................................................... 6 THE RESPONSES ........................................................................................ 8 THE DECISION........................................................................................... 9 POINT A DISTRICT ATTORNEY’S DISCRETIONARY DECISION TO RECUSE HIMSELF IN A PARTICULAR CASE IS NOT AMENABLE TO REVIEW BY ARTICLE 78 ............................................................... 11 A. The County Law Empowers A Superior Criminal Court To Appoint A Special District Attorney When An Elected District Attorney Is Disqualified; It Does Not Empower A Court To Remove Or Disqualify An Elected District Attorney ................................... 12 B. Just As Gubernatorial Supersession Pursuant To The Executive Law And Removal Of Elected District Attorneys Pursuant To The State Constitution Are Purely Executive Functions, So Too Is An Elected District Attorney’s Recusal Decision; It Is Thus Beyond Correction By Article 78 ................................. 19 ii C. Even If The District Attorney Can Be Said To Be Acting In A Quasi-Judicial Role When He Recuses Himself, That Recusal Is Not Amenable To Review ................................................................................ 28 D. The Discretionary Nature Of A Recusal Determination Militates Against Consideration Of A Challenge To It ................................. 30 E. Petitioners’ Premise That Actual Prejudice Is The Only Test Authorizing Recusal Of A District Attorney Is False. .................................. 38 F. The Alternatives Proposed By Petitioners Are Best Addressed To The Legislature ............................................................................................. 48 CONCLUSION ............................................................................................................ 65 iii TABLE OF AUTHORITIES Cases Curry v. Hosley, 86 N.Y.2d 470 (1995) .................................................................. 43 Forti v. New York State Ethics Comm’n, 75 N.Y.2d 596(1990) ........................ 23 Haggerty v. Himelein, 89 N.Y.2d 431 (1997) ......................................................... 50 Harvey v. County of Renssselaer, 83 N.Y.2d 917 (1994) .................. 22, 32, 34, 55 Imbler v. Pachtman, 424 U.S. 409 (1976) ............................................................... 28 In re Grady, 138 Misc.2d 983 (County Ct., Dutchess Co. 1988) ......................... 13 Johnson v. Hornblass, 93 A.D.2d 732 (1st Dept. 1983) ........................................ 29 Johnson v. Pataki, 91 N.Y.2d 214 (1997) .................................................. 20, 21, 26 Matter of Dondi v. Jones, 40 N.Y.2d 8 (1976) ................................... 12, 36, 37, 53 Matter of Donnaruma v. Carter, 41 Misc.3d 195 (Sup. Ct., Albany Co. 2013), aff’d in relevant part sub nom. Matter of Soares v. Carter, 113 A.D.3d 993 (3d Dept. 2014) .............................................. 22, 27, 28 Matter of Holtzman v. Hellenbrand, 130 A.D. 2d 749 (2d Dept. 1987) ............ 24 Matter of McGinley v. Hynes, 51 N.Y.2d 116 (1980), cert. denied, 450 U.S. 918 (1981) .............................................. 12, 24, 28 Matter of Morgenthau v. Erlbaum, 59 N.Y.2d 143 , cert. denied, 464 U.S. 993 (1983) .................................................... 36, 53 Matter of Nieblas v. Kings County District Attorney 209 A.D.2d 703 (2d Dept. 1994) ................................................................. 24 Matter of Rush v. Mordue, 68 N.Y.2d 348 (1986) .......................................... 30, 37 Matter of Rice, 31 Misc.3d 838 (Supreme Ct., Nassau Co. 2011) ......................................... 13, 29, 48 iv Matter of Soares v. Herrick, 20 N.Y.3d 139 (2012) ........................................ passim Matter of Working Families Party v. Fisher, 109 A.D.3d 478 (2d Dept. 2013)............................................................. 3, 10, 12 Matter of Working Families Party v. Fisher, 2013 NY Slip Op 69564 (U) (2d Dept. April 4, 2013) ...................................... 9 Matter of Zugibe v. Bartlett, 63 A.D.3d 11665 (2d Dept. 2009) ......................... 29 Morrison v. Olson, 487 U.S. 654 (1988) ................................................................. 60 Mulroy v. Carey, 43 N.Y.2d 819 (1977) ............................................................ 56 fn. People v. Adams, 20 N.Y.3d 608 (2013) .......................................................... passim Payne v. O’Brien, 114 A.D. 890 (3d Dept. 1906) .................................................. 54 People v. Anonymous, 126 Misc.2d 673 (Crim. Ct.. New York Co. 1984) ....... 29 People v. Balcacer, 6 Misc.3d 1032A(Crim. Ct., NY Co. 2005) .................... 17 fn. People v. Cassidy, 118 Misc. 2d 110, 112 n.2 (Crim. Ct., Kings Co. 1983) ................................................................................ 17 People v. DiFalco, 44 N.Y.2d 482, 486 (1978) ................................... 24, 27, 28, 49 People v. Gallagher, 143 A.D.2d 929 (2d Dept. 1988) ......................................... 56 People v. Herr, 86 N.Y.2d 638 (1995) .................................................................... 42 People v. Keeton, 74 N.Y.2d 903 (1989) ................................................................ 42 People v Joseph Stevens & Co., Inc., 31 Misc. 3d 1223(A) (Sup. Ct., N.Y. Co. 2011) ................................................................................... 52 People v. Leahy, 72 N.Y.2d 510 (1988) ............................................................ passim People v. Mackell, 47 A.D.2d 209 (2d Dept. 1975), aff'd, 40 N.Y.2d 59 (1976) ................................................................................. 24 v People v. Montgomery, 7 Misc.2d 294 (Special Sessions, Richmond Co., 1957) ........................................................... 37 People v. Moreno, 70 N.Y.2d 403, 405 (1987) ...................................................... 29 People v. Nelson, 167 Misc. 2d 665, 670 (Crim. Ct., Kings Co. 1995) ............... 17 People v. O'Connell, 8 Misc. 3d 1009(A) (Crim. Ct, Kings Co.. 2005) ......... 17 n. People v. Paperno, 54 N.Y.2d 294 (1981) .............................................................. 23 People v. Ramos, 34 Misc.3d 914, 919 (Sup. Ct., Kings Co. 2012) ..................... 49 People v. Rini, 2012 NY Slip Op 50302(U) (App. Term, 2d, 11th & 13th Judicial Districts 2012) ..................................... 26 People v. Schrager, 74 Misc. 2d 833, 834 (Sup. Ct. Queens Co. 1973) .............. 13 People v. Shinkle, 51 N.Y. 2d 417 (1980) .................................................. 14, 22, 55 People v. Soddano, 86 N.Y.2d 727, 728 (1995) ........................................ 19, 49, 50 People ex rel. Bruckner v. Wyner, 207 Misc. 673 (Westchester Co Ct. 1955) ...................................................................... 37 People v Zimmer, 51 N.Y.2d 390 (1980) ......................................................... passim Schumer v. Holtzman, 60 N.Y.2d 46 (1983) .................................................... passim Sherril v. O'Brien, 188 N.Y. 185, 225 (1907) ......................................................... 54 Rules of Professional Conduct Rules 1.7-1.10 ............................................................................................................. 43 Rule 1.16 ........................................................................................................ 43, 44, 55 Rule 8.4(d) .............................................................................................................. 5, 44 vi Other 9 NYCRR 1.55-1.59 .................................................................................................. 58 American Bar Association National Lawyer Populations By State ................. 15fn County Law §701(1) ............................................................................................ passim CPL §470.35(1) .......................................................................................................... 17 Executive Law §63(2) ..................................................................... 18, 20, 22, 49, 53 Judiciary Law §17 ....................................................................................................... 29 Judiciary Law §14 ....................................................................................................... 29 Public Officers Law §30 ...................................................................................... 23 n. Public Officers Law §§42-43 .................................................................................... 20 NY Const Art IV §3 .................................................................................................. 21 NY Const Art XIII §13(a) ........................................................................................ 22 NY Const Art XIII §13(b) ................................................................................. 18, 20 Penal Law §240.30 ............................................................................................... 16, 40 Bellacosa, Joseph W. ,Cogitations Concerning the Special Prosecutor Paradigm: Is the Cure Worse Than the Disease?, 71 Alb. L. Rev. 1 (2008) ............................ 58 Ellis, Michael J., The Origins of the Elected Prosecutor, 121 Yale L.J. 1528,(2012) .................................................................................... 61 Fairfax, Jr., Robert A., Delegation of the Criminal Prosecution Function to Private Actors, 43 U.C. Davis L. Rev. 411 (2009) ........................................... 59 COURT OF APPEALS STATE OF NEW YORK In the Matter of the WORKING FAMILIES PARTY, Petitioners, For a judgment pursuant to Article 78 of the Civil Practice Law and Rules -against- HONORABLE FERN FISHER, et al. Respondents. APL-2013-00322 BRIEF FOR RESPONDENT DANIEL M. DONOVAN, JR. PRELIMINARY STATEMENT By permission of this Court, granted on November 19, 2013, petitioners Working Families Party appeal from a judgment of the Appellate Division, Second Department entered on August 7, 2013. By that judgment, the Appellate Division denied a petition, brought by the Working Families Party, seeking among other things, vacatur of an order rendered by respondent Honorable Fern Fisher appointing a special district attorney in connection with an investigation into a 2009 City Council election on Staten Island. That appointment had been sought by respondent Daniel M. Donovan, Jr., District Attorney of Richmond County, after he had recused himself from involvement in that investigation. 2 INTRODUCTION The petition underlying this appeal had its genesis in events surrounding a 2009 City Council election on Staten Island. As a result of information made known to him, respondent Donovan commenced a preliminary investigation into the possibility that there had been violations of the state election law, New York City's local campaign finance law, and the Penal Law in connection with that election. On or about February 22, 2010, following that preliminary investigation, respondent Donovan sought appointment of a special district attorney. He also asked that the application be kept under seal. On January 12, 2012, the application was granted; Roger Bennet Adler was appointed as Special District Attorney (hereinafter, the order will be designated "the appointment order"). The order further provided that the application remain under seal until further order of the court. On August 14, 2012, counsel for petitioners requested of respondent Fisher a copy of the sealed application filed by respondent Donovan. There appears to have been no response to this letter. On or about January 31, 2013, Special District Attorney Adler caused a grand jury subpoena to be served upon the Assistant Secretary of petitioner Working Families Party. On or about February 5, 2013, he caused a second grand jury subpoena to be served, this one upon "Citizen Action of New York," a group apparently connected to the petitioner Party. 3 On February 21, 2013, counsel for petitioners again sought release of respondent Donovan's sealed application. It appears that there was no response to this letter, either. By order to show cause obtained on February 26, 2013, petitioners commenced a special proceeding in the Appellate Division, Second Department pursuant to CPLR Article 78 relief seeking vacatur of the order appointing Special District Attorney Adler; quashal of the subpoenas to petitioners' assistant secretary and Citizen Action of New York; and unsealing of the heretofore sealed application for appointment of a special district attorney. With respect to respondent Donovan, petitioners contested the propriety of his recusal from the investigation. Before filing responding papers, respondent Donovan sought an order authorizing him to file his response under seal, and by order dated April 4, 2013, the Appellate Division, Second Department granted that application and further authorized respondent Donovan to redact from the copies of his responding papers to be served on the parties material contained in the supporting affirmation filed in connection with the application for the appointment of a special district attorney. After petitioners filed a reply memorandum, the matter was argued before the Appellate Division, and on August 7, 2013, that court denied the petition and dismissed the proceeding. Matter of Working Families Party v. Fisher, 109 A.D.3d 478 (2d Dept. 2013). 4 On November 19, 2013, this Court granted petitioner Party’s motion for leave to appeal. 2013 NY Slip Op 91646 (November 19, 2013). On appeal to this Court, petitioner Party maintains that a district attorney must have an actual conflict before recusing himself, which they maintain was not present here. They also claim that the order appointing the special district attorney is invalid because respondent Justice Fisher is not a judge of a superior criminal court in the county of appointment as required by County Law Section 701(1) and that, in any event, the appointment was not for a particular case as that statute requires. Respondent Donovan will address the questions of an elected district attorney’s power to recuse himself from a prosecution and the particular case limitation. SUMMARY OF ARGUMENT County Law Section 701 empowers a superior criminal court to appoint a special district attorney when the county’s elected district attorney either shall not be in attendance at a term of any court of record, which he or she is by law required to attend, or is disqualified from acting in a particular case. The disqualification power, unlike the appointment power, lies with any criminal court, superior or local, with jurisdiction to try a particular matter upon a showing that the defendant will suffer actual prejudice from the elected district attorney’s continued involvement. However, most significant for this case, it does not rest only in those courts. An elected district attorney who is aware that his prosecution of a particular matter will run afoul of his obligations under the Rules of Professional Conduct has the power to recuse himself 5 when he believes he will be in violation of those rules. That recusal power is purely executive in nature and thus beyond correction in an Article 78 proceeding. And, even if the decision is viewed as quasi-judicial in nature, it cannot be any treated any differently than a judge’s recusal, over which he or she is the sole arbiter. Similarly, Article 78 relief does not lie with respect to a claim that the special district attorney appointment had not been made for a particular case. Nor is an elected district attorney’s power to recuse himself dependent on a demonstration that his continued involvement will cause actual prejudice to the target of his investigation or, if an accusatory instrument has been filed, to the named defendant. Rather, as this Court has repeatedly recognized, disqualification may be necessary if, as a result of a prior relationship with a criminal defendant, there is a substantial risk of an abuse of confidence, or when there is an appearance of impropriety which would "discourage public confidence in our government and the system of law to which it is dedicated." This last is consistent with the obligation imposed upon all attorneys under Rule 8.4(d) to be sure to avoid any conduct that is prejudicial to the administration of justice. The County Law is merely intended to fill a gap created by the recognition by a court or an elected district attorney of the latter’s ineligibility to proceed. It is thus very specific as to who may replace the elected district attorney upon recognition of this debarment. Hence, there is no authority for the notion that one of the elected district attorney’s assistants, even a member of his senior staff, may serve as district 6 attorney for a particular case or that an ethical wall cordoning off the district attorney from any involvement is in any way permissible. Indeed, Schumer v. Holtzman, 60 N.Y.2d 46 (1983), which barred respondent District Attorney Holtzman from appointing a special assistant district attorney with full responsibility for the matter in question, belies petitioners’ suggestion that erection of an ethical wall suffices to resolve any violation of the rules of professional responsibility. Finally, in light of the plain language of the County Law authorizing the appointment of a private practitioner, petitioners’ complaints about the identity of the special district attorney are better directed to the legislature. In the end, respondent Donovan took the only path open to him to resolve his ineligibility to investigate the matter, while insuring that it would, in fact, be investigated. The citizens of Staten Island deserved no less and any disagreement petitioners may have with respondent Donovan’s decision is properly addressed at election time. THE LITIGATION IN THE APPELLATE DIVISION The Petition By order to show cause signed February 26, 2013, petitioners sought Article 78 relief in the nature of prohibition. In an affidavit by counsel, petitioners alleged that on January 12, 2012, respondent Justice Fisher had signed an order appointing Roger Bennet Adler as a special district attorney in connection with a 2009 City Council 7 election on Staten Island and directed that the underlying application be sealed pending further order of the Court. It was further alleged that there had been five such contests in Staten Island that year. Petitioners further alleged that the State Courts’ E-filing system had revealed that the order had been docketed under Index Number 80049/2010 but that an effort on February 25, 2013 to obtain a copy of the order had been unsuccessful (RA27-28). Next, petitioners alleged a variety of facts about their party. Further, petitioners alleged that Special District Attorney Adler had issued a number of grand jury subpoenas including one to the treasurer of the party, one to the assistant secretary of the party, and one to a group known as Citizen Action of New York (RA28). Additionally, petitioners alleged two attempts made to obtain respondent Donovan’s underlying application from the appointing justice, both of which were unsuccessful (RA29). Finally, petitioners alleged that then-Kings County District Attorney Charles J. Hynes sought a special district attorney in connection with an unrelated matter, that the application had not been sealed and that the application had been speedily granted (RA29). The affidavit concluded with a request that the appointment order be vacated, the subpoenas quashed, and the underlying application disclosed to them (RA29). In a self-styled petition more in the nature of a memorandum of law, filed together with that affirmation, petitioners detailed the grounds supporting such relief. 8 They alleged that respondent Justice Fisher was not a judge of a superior criminal court in Richmond County, that the standard for disqualification had not been met and thus that respondent Donovan could not be replaced, and that the requirement that the appointment be made for a particular case, see People v. Leahy, 72 N.Y.2d 510 (1988), had not been met (RA6). In the alternative, petitioners asked that the matter be treated as an appeal under the Criminal Procedure Law and the order reversed. They also sought quashal of the subpoenas on the ground that they had been issued by an improperly appointed special district attorney and that no grand jury was actual sitting (RA7). The Responses Respondents Donovan and Fisher answered separately. Both asserted a statute of limitations bar to the petition and that respondent Fisher, as Deputy Chief Administrative Judge for the New York City Courts, could appoint herself as a Richmond County Supreme Court justice and had in fact done so. This was demonstrated by the heading of the order which stated that it had been issued “At a Special Term, Part I, of the Supreme Court of the State of New York in and for the County of Richmond, at the (sic) 18 Richmond Terrace, Staten Island, New York. Respondent Donovan further contended that the 1962 reorganization of the state courts into a Unified Court System rendered irrelevant the county in which the appointing judge sat (RA117-18). Both also pointed out that Article 78 relief did not 9 lie to quash subpoenas (RA71-72, 127). Respondent Donovan argued that the appointment satisfied the particular case requirement (RA145). Respondent Donovan went on to point out that his actions were executive in nature and thus beyond review by writ of prohibition and that the Special District Attorney’s actions, to that point, were similarly executive and thus not challengeable (RA124-27). Further, respondent Donovan argued that petitioners were simply wrong in insisting that the only basis upon which an elected district attorney could be disqualified was on a showing of actual prejudice and concluded by demonstrating that the allegations in his application justified his decision to seek a special district attorney (RA139-42). By permission of the Appellate Division, Second Department, respondent Donovan filed his answer and memorandum under seal, and permission to serve those documents with information about the underlying application redacted in the copies to be served on the parties. Matter of Working Families Party v. Fisher, 2013 NY Slip Op 69564(U) (2d Dept. April 4, 2013). The Decision On August 7, 2013, the Appellate Division, Second Department denied the petition. It rejected the limitations argument, concluding that, despite the powerful proof that petitioners knew of the existence of the order as early as August 14, 2012, when they sent a letter to Justice Fisher seeking a copy of the sealed application, they had not received “notification” of the order (notification nowhere required in the County Law). After reviewing the relevant law concerning Article 78 relief, the court 10 went on to say that although “[p]rohibition is an available remedy to void the improper appointment of a Special District Attorney pursuant to County Law § 701 when the Special District Attorney is performing the quasi-judicial act of representing the State in its efforts to bring individuals accused of crimes to justice [] it is not an available remedy when the Special District Attorney is performing the purely investigative function of investigating ‘suspicious circumstances’ with a view toward determining whether a crime has been committed, since, in such circumstances, his or her acts are to be regarded as executive in nature. Here, the WFP failed to establish that Special District Attorney Adler was performing a quasi-judicial act.” Thus, concluded the Appellate Division, prohibition did not lie. The court went on to say that none of the remaining contentions had merit. See Matter of Working Families Party v. Fisher, 109 A.D.3d 478 (2d Dept. 2013). Petitioners timely sought leave to appeal to this Court and on November 19, 2013, their application was granted. On appeal to this Court, they renew their claims about Justice Fisher’s power to appoint a special district attorney in Richmond County, their “particular case” challenge to the order, and respondent Donovan’s power to recuse himself. Respondent Donovan will address only the latter two. 11 POINT A DISTRICT ATTORNEY’S DISCRETIONARY DECISION TO RECUSE HIMSELF IN A PARTICULAR CASE IS NOT AMENABLE TO REVIEW BY ARTICLE 78 Petitioners’ challenge to respondent Fisher’s appointment order takes three forms. They claim first that respondent Donovan’s application was insufficient to justify his disqualification from investigation of the matter and thus absent disqualification, a special district attorney could not be appointed. Petitioners further contend that Justice Fisher was without jurisdiction to appoint the special district attorney because she was not a superior court judge sitting in the county of appointment, Richmond County and that the appointment was not for a particular case. Their challenge to respondent Donovan’s recusal decision – a purely executive determination – is not amenable to Article 78 relief. Nor is their particular case complaint amenable to such collateral challenge inasmuch as it may be raised on direct appeal from a judgment of conviction. The extraordinary remedy of prohibition lies only where there is a clear legal right and only when the body or officer acts or threatens to act without jurisdiction in a matter over which it has no power over the subject matter or where it exceeds its authorized powers in a proceeding over which it has jurisdiction. More to the point, the petition must be directed to some inferior judicial tribunal or officer and lies to prevent or control judicial or quasi-judicial action only, as distinguished from 12 legislative, executive or ministerial action. See, e.g.¸ Dondi v Jones, 40 N.Y.2d 8 (1976). Indeed, as the Appellate Division recognized, Article 78 relief will not lie when the challenge is to the exercise by a district attorney of a non-judicial function. Matter of Working Families Party v. Fisher, 109 A.D.3d 478 (2d Dept. 2013), citing McGinley v Hynes, 51 N.Y.2d 116, 124 (1980), cert. denied, 450 U.S. 918 (1981). Respondent Donovan’s decision to recuse himself and seek appointment of a special district attorney is precisely the type of executive action that cannot be challenged by writ of prohibition. A. The County Law Empowers A Superior Criminal Court To Appoint A Special District Attorney When An Elected District Attorney Is Disqualified; It Does Not Empower A Court To Remove Or Disqualify An Elected District Attorney Crucial to consideration of the recusal question presented here is a proper understanding of the mechanism created by County Law Section 701(1). It provides 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 13 disqualification of the district attorney and such assistants as he or she may have. As this Court has recognized, the appointment available under this provision of the County Law is intended “to fill emergency gaps in an elected prosecutorial official's responsibility.” People v. Leahy, 72 N.Y.2d 510, 513 (1988). In other words, and as is evident from the plain language of the statute, this provision of the County Law is merely a gap filler and provides only that if a district attorney’s status is one of ineligibility to proceed as a result of a disqualification, a superior criminal court may act to appoint a Special District Attorney. This may come about in one of two ways; first, the elected district attorney may recognize that he has a conflict of interest that would compromise his involvement in a particular investigation or prosecution, see, e.g., In re Grady, 138 Misc. 2d 983, 985 (County Ct., Dutchess Co. 1988) (noting that it had granted District Attorney’s application for special district attorney in Tawana Brawley matter); People v. Schrager, 74 Misc. 2d 833, 834 (Sup. Ct. Queens Co. 1973)(“where the District Attorney seeks to disqualify himself, the burden of proof is sustained by a good faith application containing the reasonable grounds for his belief that he is so disqualified”); cf. Matter of Rice, 31 Misc.3d 838 (Sup. Ct., Nassau Co. 2011) (Donnino, J.) (declining to appoint a special district attorney, finding no basis articulated justifying such replacement). 14 It may also occur when a court, before which a criminal action is pending, concludes that disqualification is required to cure an actual conflict of interest, see Matter of Soares v. Herrick, 20 N.Y.3d 139, 144 (2012); protect against a substantial risk of an abuse of confidence as a result of a prior relationship with a criminal defendant, People v. Shinkle, 51 N.Y. 2d 417 (1980); or to insure public confidence in the criminal justice system in case of an appearance of impropriety, People v. Adams, 20 N.Y.3d 608 (2013). But either way, County Law Section 701 statute does not describe an affirmative action that a court can take. It merely states what is to happen in case an elected district attorney is disqualified and a matter must be held in limbo pending his replacement. This state of ineligibility, described in the statute as a district attorney being ”disqualified from acting in a particular case” is a predicate that permits a superior criminal court to appoint a special district attorney pursuant to the County Law. In other words, the appointing court is not ruling on whether the district attorney is indeed ineligible to proceed and must be disqualified; it merely examines the application to confirm the ineligibility and thus, that the circumstance exists authorizing a County Law Section 701(1) appointment. In short, whether an elected district attorney is debarred from proceeding after he himself has recognized a conflict or a court has recognized another circumstance requiring the replacement of the elected district attorney, that disqualification is not grounded in the County Law. After all, as noted above, the plain language of the 15 statute does not provide a disqualification mechanism, merely a replacement mechanism. The logic of the view that disqualification and appointment are wholly separate is confirmed by the nature of the problem County Law Section 701 is intended to address, the disqualification of an elected district attorney, as opposed to that of private counsel. When a client seeks to retain private counsel, counsel is free to decline the representation and the potential client may simply look elsewhere for counsel.1 An elected district attorney has no such luxury; he is obliged to conduct all prosecutions for crimes and offenses cognizable by the courts of the county for which he or she shall have been elected. County Law § 700(1). It is that gap -- recusal upon recognition of a district attorney’s ineligibility to proceed by a court in the course of a criminal action or by an elected district attorney either in connection with an investigation or a prosecution -- that County Law Section 701 fills. Matter of Soares v. Herrick, 20 N.Y.3d at 144. Since the statute operates merely to fill a gap, it simply does not empower a court to disqualify a district attorney. To conclude otherwise would necessarily mean that the only power to disqualify an elected district attorney from a prosecution lies in the County Law itself. But the County Law authorizes only a superior criminal court to act and if the power 1 In New York, this hardly presents a problem for a potential client. The American Bar Association recently reported that as of December 31, 2012, there were 166,317 resident, active attorneys in the state. See American Bar Association National Lawyer Population by State available at http://www.americanbar.org/content/dam/aba/migrated/marketresearch/PublicDocuments/2011 _national_lawyer_by_state.authcheckdam.pdf (last visited on January 27, 2014). 16 to disqualify arises only from that law, a criminal defendant facing prosecution in a local criminal court could not move to disqualify the district attorney other than by commencing a special proceeding in a superior court. It is clear, however, from People v. Adams, 20 N.Y.3d 608 (2013), that disqualification may be directed by a local criminal court even though that same court is without jurisdiction to appoint a special district attorney. In Adams, complainant, a sitting Rochester City Court Judge, accused defendant, her neighbor and ex-paramour, of committing a crime by sending her three offensive text messages by cell phone earlier that day. The messages were vulgar and personal in nature, and unrelated to complainant's judicial duties. Defendant was charged, by way of an information/complaint filed in Rochester City Court, with two misdemeanor counts of aggravated harassment in the second degree (Penal Law § 240.30 [1] [a], [b]). All the Rochester City Court Judges recused themselves from the case and a County Court judge, sitting as a local criminal court, took charge of the case. However, defendant’s motion to disqualify the elected district attorney was denied. On appeal to County Court, the judgment was affirmed, but this Court reversed, concluding that the defendant had made an adequate showing before the local criminal court requiring the disqualification. It necessarily follows from this disposition that disqualification of an elected district attorney and appointment of a special district attorney in his stead are wholly separate matters. If the power to disqualify an elected district attorney stemmed from 17 the County Law only, a local criminal court could never order such disqualification; the County Law authorizes only judges of superior criminal courts to act. And, if only such superior courts could disqualify, the issue presented in Adams – whether a local criminal court erred in deciding that the district attorney could not be disqualified – would have been beyond review in this Court. This is because relief is available in this Court on a direct appeal from a judgment entered in a criminal action only from defects in the criminal court proceedings, see CPL § 470.35(1). In Adams, that meant that the local criminal court had erred in failing to disqualify the district attorney. In short, the only way to understand this Court’s disposition in Adams is that local criminal courts have the power to disqualify elected district attorneys in the appropriate case, even though they do not have the power to appoint their replacements, a power given only to superior criminal courts. Indeed, this construction has been described by one local criminal court as consistent with “[t]houghtful decisional law.” People v. Nelson, 167 Misc. 2d 665, 670 (Crim. Ct. of the City of New York, Kings Co. 1995), citing People v. Cassidy, 118 Misc. 2d 110, 112 n.2 (Crim. Ct. of the City of New York, Kings Co. 1983).2 2 Two local criminal courts have taken the view that they were powerless to disqualify a district attorney, theorizing that the bifurcation between disqualification and appointment "could lead to the objectionable result of a Criminal Court Judge disqualifying a District Attorney from a case and a Supreme Court Justice then declining to appoint a Special Prosecutor." People v. O'Connell, 8 Misc. 3d 1009(A), 1009A (Crim. Ct, Kings Co.. 2005); People v. Balcacer, 6 Misc.3d 1032A (Crim. Ct., New York Co. 2005). Of course, Adams makes clear that this bifurcation is precisely what the County Law requires. And, in view of respondent Donovan’s construction of the County Law framework, the objectionable results anticipated in those cases simply cannot occur. 18 Further confirming this construction of the County Law is its contrast with other provisions of New York law that explicitly authorize replacement of an elected district attorney. The only specific removal authority provided by New York law is Executive Law supersession of a district attorney at the governor’s request and the constitutional power the chief executive is given to remove an elected district attorney. First is the governor’s power to remove from office “any district attorney who shall fail faithfully to prosecute a person charged with the violation in his or her county of any provision of this article which may come to his or her knowledge . . .” NY Const. Article XIII, §13(b). Second is his power to supersede an elected district attorney with the Attorney General in a particular matter as explicitly provided in Executive Law Section 63(2): The attorney-general shall … [w]henever required by the governor, … manag[e] and conduc[t] … criminal actions or proceedings as shall be specified in such requirement; in which case the attorney-general … shall exercise all the powers and perform all the duties in respect of such actions or proceedings, which the district attorney would otherwise be authorized or required to exercise or perform; and in any of such actions or proceedings the district attorney shall only exercise such powers and perform such duties as are required of him by the attorney-general. But, by contrast, County Law Section 701(1) provides no statutory command whatever authorizing removal of an elected district attorney. The absence of specific authority in the County Law permitting removal can only be understood to mean that the County Law on its own authorizes no such thing. It merely establishes a rule of 19 necessity; in the absence of the only constitutional officer who has authority to conduct prosecutions, a superior criminal court is empowered to appoint a special district attorney in the elected district attorney’s stead. Once it is recognized that disqualification of a district attorney and appointment of a special district attorney are separate from one another, it is apparent that a district attorney’s decision to disqualify or recuse himself is a matter left to the sound discretion of the district attorney, a member of the executive branch, whose decision in this regard cannot be reviewed in an Article 78 proceeding. B. Just As Gubernatorial Supersession Pursuant To The Executive Law And Removal Of Elected District Attorneys Pursuant To The State Constitution Are Purely Executive Functions, So Too Is An Elected District Attorney’s Recusal Decision; It Is Thus Beyond Correction By Article 78 As a general matter, the county's elected District Attorney holds an office created by the state constitution and is obliged by statutory command “to conduct all prosecutions for crimes and offenses cognizable by the courts of the county for which he [or she] shall have been elected or appointed.” NY Const Art XIII, § 13; County Law § 700(1); Matter of Soares v. Herrick, 20 N.Y.3d 139, 144 (2012); Matter of Schumer v. Holtzman, 60 N.Y.2d 46 (1983); see also People v. Soddano, 86 N.Y.2d 727, 728 (1995) (a county’s duly elected district attorney has the “ultimate, nondelegable responsibility for prosecuting all crimes and offenses”). As noted above, the County Law, however, recognizes that there may be circumstances in which the elected district attorney cannot proceed and a substitute must be appointed. 20 Further, however, there is clear recognition that there are times when an elected district attorney can be removed, either from office entirely or in connection with a particular case, an authority that exists nowhere in the County Law. In fact, the only sources in the statutory law of this state that address removal or supersession of an elected district attorney are the State Constitution and Executive Law; both have lodged this power solely in the executive. Since the authority to remove an elected district attorney has been lodged in the executive, that is, that it is a purely executive function, Article 78 relief does not lie to contest the propriety of such removal, be it by the governor or the district attorney himself. First, the state constitution empowers the governor, the chief of the executive branch, to remove from office “any district attorney who shall fail faithfully to prosecute a person charged with the violation in his or her county of any provision of this article which may come to his or her knowledge . . .” NY Const. Article XIII, §13(b). And, should this occur, Public Officers Law §§ 42-43 provides the mechanism by which a successor is put into office: if the vacancy occurred before September 20th, candidates for the office contest the next scheduled election; otherwise, the governor appoints a successor. Similarly, this Court has long recognized that article IV, § 3 of the Constitution and Executive Law § 63(2) together provide the Governor with discretionary authority to supersede the District Attorney in a matter. Johnson v. Pataki, 91 N.Y.2d 214, 223 (1997). Exercise of this discretion is largely unreviewable and is limited to 21 determining whether the State Constitution or the Legislature has empowered the Governor to act, and does not include the manner in which the Governor chooses to discharge that authority. Johnson v. Pataki, 91 N.Y.2d at 223. This, of course, is logical. The district attorney is a member of the executive branch of our tripartite system of government, People v. Leahy. 72 N.Y.2d 510, 513 (1988). For his part, the governor heads that branch, Johnson v. Pataki, 91 N.Y.2d at 223, and thus, it is the governor’s obligation to insure that inferior officers in the branch of government “take care that the laws are faithfully executed.” NY CONST. Article IV, § 3. Consequently, and consistent with separation of powers concerns, the governor can remove an elected district attorney, an inferior officer in the branch headed by the governor. Yet another member of the executive branch may seek removal and replacement of an elected district attorney for a particular case. The elected district attorney himself may step aside and seek appointment of a special district attorney when, in his view, proceeding with a matter would create a conflict of interest that would violate his or her ethical obligations. In such a circumstance, the district attorney applies to the appropriate court for an order appointing a replacement. This, too, is consistent with notions of separation of powers; it is an executive acting in an executive capacity. To be sure, a court may disqualify an elected district attorney over the district attorney’s objection, a power that may be exercised when the district attorney either 22 has an actual conflict of interest, see Matter of Soares v. Herrick, 20 N.Y.3d at 144; when, as a result of a prior relationship with a criminal defendant, there is a substantial risk of an abuse of confidence, People v. Shinkle, 51 N.Y. 2d 417 (1980); or when there is an appearance of impropriety which would "discourage[] public confidence in our government and the system of law to which it is dedicated." People v. Adams, 20 N.Y.3d 608 (2013). But separation of powers demands that the authority to exercise judicial disqualification be used rarely and only upon satisfaction of the high bars just described. People v Leahy, 72 N.Y.2d at 513-514; Harvey v. County of Rensselaer, 83 N.Y.2d 917, 919 (1994). By contrast, gubernatorial supersession or removal suffer from no such separation of powers concerns and are thus vastly different from judicial disqualification. Both speak to the authority of the chief executive to act in the branch he heads and their placement merely confirms the executive nature of the function being exercised. As to supersession, the power was placed in Executive Law Section 63(2). Its placement in the Executive Law makes plain the obvious; that supersession is an executive function. And, the placement of the removal power in Article XII of the constitution, the law enforcement section, similarly makes clear that removal is an executive function. Enforcement of the law is a classically executive function, see Matter of Donnaruma v. Carter, 41 Misc. 3d 195, 210 (Sup. Ct., Albany Co. 2013), aff’d, 113 A.D.3d 993 (3d Dept. 2014), and it follows inexorably that placement of the removal power in that section means that it is an executive power. 23 Further, and perhaps more to the point, a judicial disqualification is not the executive acting in his capacity to insure "that the laws are faithfully executed.” Forti v. New York State Ethics Com., 75 N.Y.2d 596, 616-617 (1990). Rather, it is a court acting within the scope of its own powers to disqualify a district attorney when that removal protects a criminal defendant’s right to a fair trial and serves as a check on a prosecutor’s possible abuse of authority once a prosecution has commenced. Cf. People v. Paperno, 54 N.Y.2d 294, 301 (1981) (empowering trial court to disqualify assistant district attorney when assistant’s pretrial involvement will require that he be called as a witness “to preserve the defendant's right to a fair trial”). It in no way suggests that a district attorney’s recusal is anything but an executive function.3 Even apart from the placement of the removal and supersession powers in the executive, it simply cannot be seriously contended that recusal by an elected district attorney in a particular matter is anything but executive in nature. It is axiomatic that a district attorney has a dual function in the criminal justice system: On the one hand, the public prosecutor has the obligation of representing the State in its efforts to bring individuals accused of crimes to justice. When he is fulfilling this responsibility, the public prosecutor may readily be viewed as an officer performing a "quasi-judicial" act, and his conduct may therefore become the subject of an article 78 proceeding in the nature of prohibition. On the other hand, public prosecutors also perform a role "analogous to that of a police officer", 3 There are, of course, other ways by which an elected district attorney can be removed from office. See generally Public Officers Law § 30. Most significant is that electors dissatisfied with the performance of their elected district attorney may vote, at a regularly scheduled election, to remove the district attorney and replace him. This is far from unusual. Just this past election season, the District Attorneys in St. Lawrence, Yates, Kings, and Washington Counties were denied re-election. 24 which entails the investigation of suspicious circumstances with a view toward determining whether a crime has been committed. Manifestly, when this purely investigative function is involved, the acts of the public prosecutor are to be regarded as "executive" in nature and, in consequence, cannot legitimately be the object of a writ of prohibition, except, perhaps, in a most unusual and at present unforeseeable circumstance. Matter of McGinley v. Hynes, 51 N.Y.2d 116, 123 (1980). In other words, in deciding whether or not to prosecute a case, a district attorney is exercising his sole, unreviewable, executive discretion to make that determination. People v. DiFalco, 44 N.Y.2d 482, 486 (1978); Matter of Holtzman v. Hellenbrand, 130 A.D.2d 749, 750 (2d Dept. 1987); People v. Mackell, 47 A.D.2d 209 (2d Dept. 1975), aff'd, 40 N.Y.2d 59 (1976); Matter of Nieblas v. Kings County District Attorney, 209 A.D.2d 703 (2d Dept. 1994). The decision not to prosecute may be based on any number of reasons and surely encompasses a district attorney’s determination that he cannot go forward with a particular case because of a conflict. That decision, then, purely executive in nature, is simply not reviewable in an Article 78 proceeding. In this regard, Matter of McGinley v. Hynes, supra, is particularly instructive. In McGinley, the Special Nursing Home Prosecutor had been frustrated in his efforts in connection with a grand jury presentation and had been forced to seek extension after extension of the grand jury because witnesses and custodians of evidence had resisted appearing in the grand jury. After about nine months, the grand jury refused to extend its term and it was disbanded without having taken action. A 25 new grand jury was convened and the petitioner sought to prohibit the Special Nursing Home Prosecutor from pursuing the matter further. Supreme Court denied the petition but the Appellate Division reversed and granted it. This Court reversed and denied the petition. As relevant here, that Court pointed out that prohibition was available for one purpose alone -- to restrain a judicial officer from proceeding in a matter not properly before him. A prosecutor, although he may act in a quasi-judicial manner when presenting a case on behalf of the state, serves an executive, not quasi-judicial role when conducting an investigation. Thus, at the stage at which the proceeding had reached -- the grand jury investigative stage -- prohibition could not lie because the special prosecutor was exercising an executive, not a judicial function. The same is certainly true when a district attorney recuses himself, then applies for an order appointing a special district attorney. It can fairly be said that deciding to seek a special district attorney requires some investigation into the underlying matter, particularly in those cases in which the special district attorney is sought to conduct an investigation. It is thus no different than the investigative function held unchallengeable in McGinley. Perhaps more to the point, much like the investigative function, a distinctly non-quasi-judicial function, the decision to recuse oneself is a purely executive function in which the district attorney decides whether or not he can prosecute a case. Put another way, when deciding whether or not a special district attorney must be appointed in his stead, the district attorney is making a decision akin 26 to allocating the resources of his office. That quite obviously is an executive, not a quasi-judicial function. and thus, cannot be the subject of judicial inquiry much less a writ of prohibition. Cf. People v. Rini, 2012 NY Slip Op 50302(U), 34 Misc.3d 152(A) (App. Term, 2d, 11th & 13th Judicial Districts 2012) (Golia, J., concurring) (observing that a District Attorney's practice of not advancing an arraignment is a function of the manner in which the District Attorney runs his office and is within his sole discretion, not to be disturbed by court intervention in discretionary practices or the provision of unsolicited advice). Confirming the unavailability of Article 78 relief to contest respondent Donovan’s recusal is Johnson v. Pataki, 91 N.Y.2d 214 (1997). In Johnson, the Bronx District Attorney challenged the governor’s executive order superseding him in a potential death penalty prosecution involving a slain police officer. In rejecting the challenge, this Court observed that as long as there was authority for the executive action being challenged, “the remedy as a rule lies with the people at the polls, or with a constitutional amendment, or with corrective legislation.” Id. at 223. In other words, if the action being challenged is one that is within the power of the elected district attorney, any complaint about the way he exercised that power is to be corrected not by the judiciary, but by the people at election time or by their representatives in the legislature. There can be little question that the decision reached by a district attorney to recuse himself is precisely such a decision. The District Attorney, of course, has 27 broad discretion in determining when and in what manner to prosecute a suspected offender. People v. DiFalco, 44 N.Y.2d at 486. This, as discussed above, surely encompasses that officer’s ability to decide whether or not to recuse himself from a prosecution. After all, choosing not to prosecute a matter for any reason is with the district attorney’s power. If that choice is made because of a conflict, that makes it no less unchallengeable than any other such determination. A recent decision in Albany Supreme Court, affirmed by the Third Department, highlights the district attorney’s power to conduct a prosecution in whatever manner he sees fit. In Matter of Donnaruma v. Carter, 41 Misc. 3d 195, 213 (Sup. Ct., Albany Co. 2013), aff’d in relevant part sub nom., Matter of Soares v. Carter, 113 A.D.3d 993 (3d Dept. 2014), Albany County District Attorney David Soares chose not to present evidence at a suppression hearing involving Occupy Albany defendants whose prosecution he had decided to forgo. City Court Judge Carter, however, demanded that he call witnesses on pain of contempt, but the District Attorney nevertheless demurred. District Attorney Soares petitioned for a writ in the nature of prohibition, prohibiting the judge from insisting that he call witnesses and the petition was granted as to the District Attorney. As recognized by County Court Judge Richard Platkin before whom the matter came on, the statutory obligation imposed upon District Attorneys “to conduct all prosecutions for crimes and offenses in his county” necessarily meant that all issues concerning the handling and administration of each case in which he was involved 28 were beyond judicial involvement. Matter of Donnaruma v. Carter, 41 Misc. 3d at 210.4 Just as that court could not direct the People to call witnesses, a district attorney cannot be compelled to remain in a case when he has a conflict. Put another way, the power to conduct encompasses the power to choose not to conduct and that decision simply cannot be reviewed. C. Even If The District Attorney Can Be Said To Be Acting In A Quasi-Judicial Role When He Recuses Himself, That Recusal Is Not Amenable To Review As noted above, the district attorney holds a dual role in the criminal justice system. He is, in part, a quasi-judicial officer whose responsibilities often cross a line into acts that closely mimic those performed by a judge; most prominently, of course, is the district attorney's position as the legal advisor to the grand jury. CPL § 190.25(6). See also People v. DiFalco, 44 N.Y.2d 482, 487 (1978); Matter of McGinley v. Hynes, 51 N.Y.2d at 123 (when fulfilling the obligation of representing the state in its efforts to bring individuals accused of crime to justice, the public prosecutor is performing a quasi-judicial act); Imbler v. Pachtman, 424 U.S. 409, 422 (1976) (explaining that prosecutor’s absolute immunity from suit stems from quasi- judicial nature of role and thus, judicial immunity). Thus, like a judge, there are circumstances in which a district attorney will find it necessary to recuse himself rather than participate in a prosecution or investigation. 4 As Judge Platkin pointed out, this did not insulate the district attorney from accountability in general, just accountability to the judiciary. As he pointed out, the district attorney would still have to face the voters and, as discussed earlier, could be superseded or removed by the governor. Matter of Donnaruma v. Carter, 41 Misc. 3d at 214. 29 People v. Anonymous, 126 Misc. 2d 673, 677 (Crim. Ct., New York Co. 1984) (recognizing that District Attorney “being an attorney subject to the Canons of Ethics and responsible for the ethical posture of his office, recusal or an application for same is within his sole discretion"); cf. Matter of Rice, 31 Misc. 3d 838, 841 (Sup. Ct., Nassau Co. 2011) (where district attorney admits that she suffers from no conflict, improper to appoint special district attorney); see generally Matter of Schumer v. Holtzman, 60 N.Y.2d at 55 (suggesting that self-disqualification may be appropriate to avoid violations of the rules governing professional conduct). A judge, of course, must recuse himself only in cases in which he is a party, or in which he has been attorney or counsel, or in which he is interested, or is related by consanguinity or affinity to any party to the controversy within the sixth degree. See Judiciary Law § 14. Absent such a relation to the matter before him, the trial judge is the sole arbiter of recusal. People v. Moreno, 70 N.Y.2d 403, 405 (1987). And, of particular significance, a trial judge's decision about recusal may not be challenged by Article 78 petition. Matter of Zugibe v. Bartlett, 63 A.D.3d 1165 (2d Dept. 2009); Johnson v. Hornblass, 93 A.D.2d 732, 733 (1st Dept. 1983). Thus, like a judge’s decision about recusal is unreviewable, so too is a district attorney’s similar decision, absent a legal disqualification similar to those listed in section 14 of the Judiciary Law.5 5 As best as respondent Donovan can determine, there is only one statutory disqualification applicable to a district attorney. Judiciary Law Section 17 provides that "[a] judge or surrogate or 30 D. Article 78 Relief Is Unavailable To Contest A Special District Attorney Appointment On The Ground That It Has Not Been Made For A “Particular Case.” Petitioners claim that the order appointing the special district attorney must be vacated because it fails the “particular case” requirement for such appointments explained in People v. Leahy, 72 N.Y.2d 510 (1988). Article 78 relief does not lie; petitioners have an adequate remedy at law in the event the special district attorney’s investigation results in the issuance of any form of accusatory instrument. As noted above, it has long been settled that Article 78 relief will not lie unless there is a clear legal right, and only when a court (if a court is involved) acts or threatens to act either without jurisdiction or in excess of its authorized powers in a proceeding over which it has jurisdiction. Rush v. Mordue, 68 N.Y.2d 348, 352 (1986). And, even if there has been an excess of jurisdiction or power, the extraordinary remedy will not lie if there is available an adequate remedy at law, of which appeal is but one, which may bar the extraordinary remedy. State v. King, 36 N.Y.2d 59, 62 (1975). This is true even if no criminal action has been commenced former judge or surrogate shall not act as attorney or counsellor in any action, claim, matter, motion or proceeding, which has been before him in his official character." In Matter of Czajka v. Koweek, 953 N.Y.S.2d 394, 395 (3d Dept. 2012), petitioner district attorney, who had left that office for a seat on County Court, then left the bench and returned as district attorney, had presided over certain preliminary aspects of a particular criminal case, including the initial arraignment, the subsequent arraignment upon the superseding indictment, a motion by the Columbia County Public Defender's office to disqualify itself and the unsealing of a search warrant. The case had not been resolved before the former judge resumed the office of district attorney and on the district attorney's challenge to the appointment of a special district attorney to prosecute that case, the Third Department denied the petition, concluding that the plain language of the Judiciary Law quoted above barred Czajka's involvement in the prosecution. 31 and the matter is still at an investigation stage. Agresta v. Roberts, 66 A.D.2d 929, 930 (3d Dept. 1978) (“the remedy of prohibition should not lie here since an adequate alternative remedy will be available to petitioners should they be named as defendants in these criminal prosecutions”). This is precisely the circumstance which exists here. There is merely an investigation ongoing into petitioners’ activities. It may or may not result in the filing of an accusatory instrument. It is obviously at that point that a challenge to the special district attorney’s power would lie. See, e.g., People v. Leahy, 72 N.Y.2d at 510 (entertaining challenge to special district attorney’s power on “particular case” grounds). Indeed, this case highlights the fallacy in permitting a challenge by Article 78 petition to the appointment of a special district attorney on “particular case” grounds before an accusatory instrument is filed. While petitioners complain that the order does not identify a “particular case” to which responsibility has been assigned to the special district attorney, it is not the written order that is truly at issue; it is whether the appointment has been made for a particular case. Resolving that question mandates examination of the application made by the elected district attorney for a special district attorney, a document provided to the special district attorney. Put another way, any order appointing a special district attorney must be read in conjunction with the underlying application. After all, the order cannot be understood to grant any relief or authority broader than that requested. Cf. People v. Olah, 300 N.Y. 96, 101 (1949) ("No opinion is an authority beyond the point actually 32 decided, and no judge can write freely if every sentence is to be taken as a rule of law separate from its association"). That the order and application must be read together is necessarily true since, as this Court has long recognized that a court's authority under County Law § 701 "to displace a duly elected [d]istrict [a]ttorney" raises separation of power concerns, [and thus] "[t]his exceptional superseder authority should not be expansively interpreted." Matter of Soares v. Herrick, 20 N.Y.3d 139, 144-45 (2012). This ineluctably means that when an application for such an appointment is made by an elected district attorney, a court’s appointment can only extend as far as the request made by the elected district attorney for otherwise, the court would be overstepping the line between the judicial and executive branches of government. Properly understood then, the “particular case” question posed by petitioners is not whether this appointment was for a particular case; it is whether the face of the appointment order itself must state a particular case. This simply cannot be the case. While the majority of special district attorney appointments are for the “particular case” that has been identified in an already filed accusatory instrument, the “transient relief” of such an appointment may need to be made for an investigation. Matter of Harvey v. County of Rensselaer, 83 N.Y.2d 917, 918 (1994) ("when a district attorney is disqualified from conducting an investigation or prosecution . . ."). At the investigation stage, continued confidentiality is crucial. At this stage, care must be taken not to divulge publicly information known only to investigators who may be 33 considering whether or not criminal charges are appropriate. Certainly, premature disclosure of information known to a special investigating district attorney could result in the very harms that have been identified that justify keeping grand jury proceedings confidential: (1) prevention of flight by a defendant who is about to be indicted; (2) protection of the grand jurors from interference from those under investigation; (3) prevention of subornation of perjury and tampering with prospective witnesses at the trial to be held as a result of any indictment the grand jury returns; (4) protection of an innocent accused from unfounded accusations if in fact no indictment is returned; and (5) assurance to prospective witnesses that their testimony will be kept secret so that they will be willing to testify freely. People v. Di Napoli, 27 N.Y.2d 229, 235 (1970). Reasons one, three, four and five apply equally to premature disclosure of information concerning an investigation that might lead to a grand jury proceeding. After all, a subject's flight, subornation of perjury, protection from unfounded accusations, and assurances that witness identities will not be revealed serve to protect the integrity of any investigation a district attorney may conduct, with the help of the grand jury or otherwise. See Matter of District Attorney of Suffolk County, 58 N.Y.2d 436, 443-44 (1983). But requiring more specifics in an appointment order can, in the appropriate case, defeat the very purpose of the sealing of the underlying application. For example, identifying a specific subject of that investigation in the order could well lead to the very harms just described. Thus, as 34 long as the special district attorney can read the application and order and understand the limitations on his assignment, the appointment is a valid one. Inasmuch as the reasons for confidentiality in this case mirror those that animate CPL Article 190 and grand jury secrecy, it is particularly important that upon an appointment of a special district attorney for an investigation, nothing be revealed that might compromise that investigation even in the appointment order. Significantly, the special district attorney stands in the shoes of the elected district attorney for those “particular case[s]” for which he is appointed. County Law § 701(4); Harvey v. County of Rensselaer, 83 N.Y.2d at 918 (a Special District Attorney's powers are coextensive with those of a District Attorney); Matter of People v. Christensen., 77 A.D.3d 174, 190 (2d Dept. 2010). And, that being the case the challenge to the adequacy of the order is little else than an attempt to obtain pre- accusatory instrument discovery. It is abundantly clear that such relief is unavailable when an elected district attorney is conducting the investigation. See Brown v. Appelman, 241 A.D.2d 279, 284 (2d Dept. 1998). That a special district attorney is handling the matter does not expand the rights that a defendant or a subject may have. What follows from these principles is that a challenge to an appointment of a special district attorney on particular case grounds must await a direct appeal. Put simply, what petitioners seek is something to which they are not entitled: the breach of secrecy attendant upon the early stages of any criminal investigation. They are 35 entitled to discovery at the appropriate time; it is just not yet. That being so, their challenge to the order of appointment must fail. There is yet a more fundamental reason that the “particular case” challenge cannot be brought in an Article 78 proceeding before institution of criminal charges. The “particular case” requirement in County Law § 701, of course, assures that the appointment of the prosecutor by an official from another branch of government will merely “fill [an] emergency gap[] in an elected prosecutorial official's responsibility,” People v. Leahy, 72 N.Y.2d at 513, by carefully circumscribing the special district attorney’s authority to the precise matter for which the appointment is sought. But in doing so, what it really does is draw the line across which the special district attorney may not cross absent further judicial authorization and which the elected district attorney may not cross because he is not the district attorney for the “particular case.” See People v Abrams, 17 N.Y.3d 760, 762 (2011) (rejecting claim that consultation between elected district attorney and special district attorney concerning immunity to be conferred upon a witness crossed the line between the authority each held). In other words, the “particular case” requirement merely serves to divide the business being conducted by an elected executive branch official and an official appointed to serve in his stead for a brief period and for a “particular case.” Just as Article 78 relief does not lie to challenge the elected district attorney’s determination of his own ineligibility to proceed, see pp. 19-28, supra, it does not lie to challenge the manner in 36 which those two members of the executive branch have decided to divide their respective responsibilities. D. The Discretionary Nature Of A Recusal Determination Militates Against Consideration Of A Challenge To It As noted at the beginning of this point, an Article 78 proceeding in the nature of prohibition will not lie to correct procedural or substantive errors of law. Matter of Schumer v. Holtzman, 60 N.Y.2d at 51; Matter of Morgenthau v. Erlbaum, 59 N.Y.2d 143, 147, cert. denied, 464 U.S. 993 (1983). Rather, the extraordinary remedy "of prohibition may be obtained only when a clear legal right of a petitioner is threatened by a body or officer acting in a judicial or quasi-judicial capacity 'without jurisdiction in a matter over which it has no power over the subject matter or where it exceeds its authorized powers in a proceeding of which it has jurisdiction.'" Matter of Morgenthau v. Erlbaum, 59 N.Y.2d at 147, quoting Matter of Dondi, 40 N.Y.2d 8, 13 (1976); see also Matter of Soares v. Herrick, 20 N.Y.3d at 145. Thus, if the action under attack is a matter within the sound discretion of the court or officer, Article 78 will not lie. That is obviously the case here. First, as discussed in subpoint B., supra, the district attorney is granted broad discretion in deciding which cases to prosecute and those in which he will decline prosecution. This means that the decision not to prosecute a case because of conflict is a matter within his sound discretion and cannot be undone in this proceeding. Put another way, because the recusal decision lies within the district attorney’s discretion, 37 petitioners have no legal right to his non-recusal. Because petitioners have no clear legal right to the relief sought, Article 78 relief does not lie. Moreover, it is abundantly clear that even assuming the writ lies, the writ of prohibition nonetheless does not issue as of right, but only in the sound discretion of the court. In exercising that discretion, a court must weigh a number of factors: the gravity of the harm caused by the act sought to be performed by the official; whether the harm can be adequately corrected on appeal or by recourse to ordinary proceedings at law or in equity; and whether prohibition would furnish a more complete and efficacious remedy even though other methods of redress are technically available. Matter of Rush v. Mordue, 68 N.Y.2d 348, 354 (1986). The only harm petitioners could remotely suggest from respondent Donovan’s recusal would be that a replacement for respondent Donovan is investigating the matter with an eye toward possible prosecution. But petitioners surely have no right to the prosecutor of their choice. People v. Montgomery, 7 Misc.2d 294 (Special Sessions, Richmond Co., 1957); People v. Wyner, 207 Misc. 673 (Westchester Co. Ct. 1955). Further, that petitioners may be a target of the Special District Attorney’s investigation cannot justify granting them relief. It is unquestioned that the ordeal of a criminal trial and the possibility of conviction, by themselves, have been held insufficiently harmful to warrant use of the writ, Matter of Dondi v. Jones, 40 N.Y.2d at 14; it necessarily follows that the mere possibility of involvement in an investigation cannot be sufficient to justify grant of the writ. This is particularly so, where, as here, 38 any error in the conduct of this investigation and subsequent prosecution can be resolved on a direct appeal in the event of a judgment of conviction. Further, if the gravity of the harm that might result from the challenged order is relevant to the exercise of discretion to grant a writ of prohibition, so too must the gravity of the harm caused by grant of the relief. Plainly, the harm would be so great so as to be nearly incalculable, for grant of the petition and vacatur of the order would necessarily mean that any misconduct would go unpunished. A court cannot require that respondent Donovan undertake the investigation. Here, respondent Donovan has already concluded that he was disqualified by virtue of his professional conduct obligations from further acting in the investigation of events surrounding the 2009 City Council election. Thus, requiring him to pursue the matter would force him to violate the Rules of Professional Conduct; certainly, a court cannot order that. As a result, the matter would neither be investigated nor prosecuted if appropriate. The harm to the People is patent. E. Petitioners’ Premise That Actual Prejudice Is The Only Test Authorizing Recusal Of A District Attorney Is False. As demonstrated above, petitioners have no right to Article 78 relief. But in any case, their attempt to identify the standard that must be met before an elected district attorney can step aside must fail. Petitioners’ primary claim with respect to respondent Donovan is that Schumer v. Holtzman, supra, mandates that recusal and judicial disqualification be treated no differently. According to petitioners, a district 39 attorney may be replaced only upon a showing of actual prejudice, whether or not that removal is made at the instance of the district attorney himself or by a court over a district attorney’s objection; in other words, petitioners’ view is that whether the district attorney recuses himself or is disqualified by a court, that recusal or disqualification is available only if the district attorney has an actual conflict. The simple answer to this contention is that this Court has expressly rejected it. In any case, petitioners’ view woefully misreads Schumer v. Holtzman, supra. Moreover, it ignores this Court’s longstanding recognition that an elected district attorney is subject, like all attorneys, to the Rules of Professional Conduct. In People v Zimmer, 51 N.Y.2d 390 (1980), the District Attorney who prosecuted the charges against defendant was, at the time he presented the case to the Grand Jury, also counsel to and a stockholder of the corporation in the course of whose management the defendant was alleged to have committed the crimes with which he was charged. The defendant moved to dismiss the indictment on the ground that this relationship with the case disqualified the District Attorney. This Court agreed. Relevant to the question is this passage from the unanimous opinion written by Judge Fuchsberg: “the practical impossibility of establishing that the conflict has worked to defendant's disadvantage dictates the adoption of standards under which a reasonable potential for prejudice will suffice.” Id. at 395. In other words, there need not be a demonstration of actual prejudice before an elected district attorney may be disqualified from conducting a prosecution. 40 The Court confirmed this just recently in People v Adams, 20 N.Y.3d at 608. In Adams, complainant, a sitting Rochester City Court Judge, accused defendant, her neighbor and ex-paramour, of committing a crime by sending her three offensive text messages by cell phone earlier that day. The messages were vulgar and personal in nature, and unrelated to complainant's judicial duties. Defendant was charged, by way of an information/complaint filed in Rochester City Court, with two misdemeanor counts of aggravated harassment in the second degree (Penal Law § 240.30 [1] [a], [b]). All the Rochester City Court Judges recused themselves from the case and a County Court judge, sitting as a local criminal court, took charge of the case. However, defendant’s motion to disqualify the elected district attorney was denied. On appeal to County Court, the judgment was affirmed but this Court reversed. In pertinent part, the Court held that disqualification was necessary when there is an appearance of impropriety which would "discourage[] public confidence in our government and the system of law to which it is dedicated," concluding that the defendant had demonstrated a need for the disqualification, a need that did not rise to the level of actual prejudice. People v Adams, 20 N.Y.3d at 613. Of course, at issue here is not the standard that must be met when a court steps in to remove an elected district attorney over that officer’s objection. Rather, at issue here is what must be shown to obtain appointment of a special district attorney pursuant to the County Law when an elected district attorney is “disqualified from acting in a particular case.” There can be little doubt that the standard is not actual 41 prejudice; not only is this notion foreclosed by Zimmer and Adams, but logic dictates that the proper administration of justice is best served by a different standard when the district attorney recuses himself. Unlike a district attorney's recusal, a disqualification at the instance of the court implicates separation of powers concerns. This is because the disqualification of an elected district attorney, who is a member of the executive branch, by a judge, a member of the judicial branch, crosses the line that separates the two co-equal branches of government by invading the province of the executive's sole discretion to decide if and how to prosecute a particular criminal matter. Indeed, because of the gravity of the imposition of such an appointment upon New York's tripartite system of government, this Court has described County Law section 701 as “designed narrowly by its terms and by its purpose to fill emergency gaps in an elected prosecutorial official's responsibility” and that the exceptional superseder authority “displac[ing] a duly elected District Attorney, an officer of the executive branch of government, with a substitute appointed by a Judge from another branch of government authority, should not be expansively interpreted.” People v. Leahy, 72 N.Y.2d at 513, 514. By contrast, a district attorney's recusal does not implicate the unwanted invasion of the executive branch of government by the judicial. What follows from this is that the higher, actual prejudice standard must be established over an elected district attorney’s objection to removal to insure appropriate limitation on 42 judicial encroachment of a purely executive prerogative – the decision whether to proceed with a particular matter. The identity of the party who directed disqualification highlights the irrelevance to petitioners’ argument of the cases they cite. In each, the requests for disqualification or the disqualification itself was not at the instance of the district attorney himself, but instead were over his objection. For example, in People v. Keeton, 74 N.Y.2d 903 (1989), defendant urged that the elected district attorney had to step aside because cross-complaints were involved. Similarly, in People v. Herr, 86 N.Y.2d 638 (1995), the defendant sought court intervention to disqualify the elected district attorney because his defense counsel served as a village prosecutor. People v Adams and Matter of Soares v. Herrick also involved judicial disqualification. This Court rejected the idea that replacement of the elected district attorney was justified in each of the cases, noting that court replacement of an elected district attorney required a showing of actual prejudice, absent in those cases. Cases discussing the propriety of a judicial disqualification of an elected district attorney have no relevance to a circumstance in which the district attorney disqualifies himself; only when there is violence done to the constitutional order when a judicial officer purports to disqualify a member of the executive branch from his statutory obligations must a high standard of actual prejudice be met. There is yet a further reason that a district attorney’s recusal cannot turn on whether the defendant or target would be actually prejudiced by his continued 43 participation in the matter. Like any other attorney, an elected district attorney is subject to the Rules of Professional Conduct. Curry v. Hosley, 86 N.Y.2d 470 (1995). Thus, like any other attorney, an elected district attorney must conduct his law practice in a fashion consistent with the demands of the Rules of Professional Conduct. Should a private attorney conclude that he has a conflict that requires that he decline a particular matter, naturally, he disqualifies himself from accepting that particular case. Similarly, should he come to realize that his involvement in a particular matter may result in a violation of the Rules of Professional Conduct, that same attorney is obliged to disqualify himself as well. Rule 1.16(b)(1) explicitly provides that a lawyer shall withdraw from the representation of a client when the lawyer knows or reasonably should know that the representation will result in a violation of the Rules of Professional Conduct. This necessarily means that when an elected district attorney comes to believe that his continued pursuit of a matter will place him in violation of the Rules, he is duty bound to step aside, whether or not his continued involvement in the prosecution will prejudice the defendant or subject, or not. Put another way, the the Rules of Professional Conduct speak not only of disqualification when there may exist a conflict of interest that would prejudice a potential, current, or former client, see Rules 1.7-1.10 (conflict of interest rules), but of disqualification whenever any of the Rules of Professional Conduct might be violated. In short, actual prejudice simply cannot be the standard by which an elected district attorney shall judge whether he needs to recuse himself 44 for to conclude to the contrary risks forcing an elected district attorney into a violation of the Rules of Professonal Responsibility. In fact, respondent Donovan would suggest that People v. Adams merely identifies a circumstance in which an elected district attorney is obliged to recuse himself because of a professional responsibility concern – where the elected district attorney’s continued involvement in the matter would result in that officer’s “engage[ment] in conduct that is prejudicial to the administration of justice” in violation of Rule 8.4(d). After all, Adams disqualifies an elected district attorney” if the appearance [of impropriety] is such as to "discourage[] public confidence in our government and the system of law to which it is dedicated." In a case of that nature, "[d]efendant[s], and indeed the public at large, are entitled to protection against the appearance of impropriety." People v Adams, 20 N.Y.3d at 612-613. In other words, continued participation in such a case would violate Rule 8.4(d), a circumstance that requires a district attorney to recuse himself under Rule 1.16. Petitioners’ citation to Schumer v. Holtzman, supra, for the proposition that this Court has mandated the higher actual prejudice standard for even a district attorney’s recusal is particularly puzzling. Of course, the holding of the case is that an elected district attorney may not appoint a replacement in her stead without resort to the County Law Section 701 appointment procedure; this is not an issue here for respondent Donovan’s application fully complied with that statute. In his application for a special district attorney following the recusal decision, respondent Donovan 45 explained that an appointment was needed because he was disqualified from acting. His papers required only a showing that he was disqualified for that status is a necessary predicate to a court’s exercise of its appointment power under County Law Section 701. While it is true that the Schumer court repeated the actual prejudice standard in a portion of the writing, the context of that discussion was consistent with the separation of powers basis that requires application of that higher standard when it is a court that seeks to replace an elected district attorney over that officer’s objection. A careful reading of the opinion reflects that after this Court disposed of the matter on the ground that District Attorney Holtzman had failed to comply with the County Law provisions authorizing appointment of someone in the elected district attorney’s place, it went on to discuss petitioner Schumer’s contention that the court should remove District Attorney Holtzman from the matter because her continued involvement purported to violate a provision of the then extant Code of Professional Responsibility. This Court declined the invitation, observing that “the conditions petitioner raises do not come within that narrow area in which a court may consider whether counsel should be removed from a particular case. 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.” Schumer v. Holtzman, 60 N.Y.2d at 55 (emphasis added). It is worthy 46 of particular note that this Court invited District Attorney Holtzman to consider whether factors she believed necessitated her removal -- embarrassment or accusations of a vendetta because of prior political differences -- ought to be weighed in either proceeding with the matter herself or moving for the judicial appointment of a special prosecutor. Id. This is precisely what respondent Donovan did and the notion that he ought to be criticized for engaging in precisely the analysis the Schumer court recommended is little less than fatuous.6 Among the reasons petitioners urge for applying an actual prejudice standard whether the disqualification is at the instance of the court or the district attorney is that use of a lower standard will encourage district attorneys to use their recusal power to avoid making difficult decisions (Petitioners’ Brief at 38-39). Of course, a prosecutor can always decide not to pursue a particular matter and such a decision is reviewable at the polls when that officer stands for re-election or by the governor who could exercise his removal power. Moreover, at bottom, the suggestion that respondent Donovan and his 61 colleagues across the state would seek to use the recusal power presumes that their motives would be dishonorable ones. If anything, the presumption should and must be that a district attorney’s decisions are grounded in the law and the facts presented 6 In view of the invitation, petitioners’ resort to the inclusion as an exhibit of the application filed by then District Attorney Holtzman that underlies Schumer v. Holtzman, assuming its propriety, merely highlights the poverty of their argument. Even assuming that her view that she could not avail herself of the County Law framework was correct, but see People v Zimmer, 51 N.Y.2d 390 (1980), the County Law jurisprudence in the 30 years since her application certainly would have supported her application. See, e.g., People v. Adams, 20 N.Y.3d 608 (2013). 47 to him. Matter of Donnaruma v Carter, 41 Misc. 3d at 209 (“the District Attorney is entitled to a presumption that he is acting in good faith”). Here, however, it need not merely be presumed that respondent Donovan acted honorably; there can be little doubt that he did so. As the matter appeared to respondent Donovan – that that he was ethically bound to recuse himself from involvement in an investigation of the 2009 City Council election because of the information known to him – it is difficult to see what option respondent Donovan had other than recusal. Once he reached the good faith belief that he suffered from a disqualifying conflict, respondent Donovan had three options: he could have swept the matter under the rug; he could have investigated and prosecuted the case despite his recognition that continued involvement in the matter violated the Rules of Professional Conduct; or he could have recused himself and sought a special district attorney. Certainly, the first option would have disserved the community which respondent serves as chief law enforcement officer for it would have allowed possible criminal activity to go uninvestigated and unchecked. The second would have disserved the legal community in general and public prosecutors in particular. As to the broader legal community, pursuing the prosecution despite a belief in an ethical bar would suggest that there are circumstances in which patent ethical violations should be ignored. And for public prosecutors, the message would be they need not take their ethical obligations seriously. 48 Plainly, respondent Donovan chose the only path that vindicated the community’s interests on the one hand and the profession’s concerns on the other. Once he advised respondent Fisher that he was debarred from proceeding in the matter, that is, was disqualified, Justice Fisher merely examined the application to insure that respondent Donovan was ineligible to proceed. Cf. Matter of Rice, 31 Misc. 3d 838, 841 (Sup. Ct., Nassau Co. 2011). Having done so, she was duty bound to appoint a special district attorney. F. The Alternatives Proposed By Petitioners Are Best Addressed To The Legislature Petitioners propose several alternatives to appointment of a special district attorney which, they suggest, should have been pursued before appointment of a private practitioner as special district attorney. First, they suggest that the elected District Attorney can step aside and allow one of his subordinates to handle the prosecution. This is a rather remarkable suggestion, coming as it does from a party whose reliance on Schumer v. Holtzman, supra, is central to its presentation. In effect, what petitioners posit is construction of an ethical wall insulating respondent Donovan from any involvement in the prosecution (Petitioners' Brief at 24-30). If Schumer v. Holtzman made anything clear, it made clear that a district attorney may delegate his authority to his assistants but may not transfer his fundamental responsibilities to such inferior officer. In effect, what petitioners are suggesting is that the District Attorney can disqualify himself but then vest his 49 fundamental discretionary power in an assistant in his office. Such transfer, however, may be accomplished only pursuant to County Law Section 701 or by gubernatorial order pursuant to Executive Law Section 63(2). Schumer v. Holtzman, supra at 53; see People v. DiFalco, 44 N.Y.2d 482, 487 (1978) (delegation of district attorney's power must have express legislative authority); People v. Soddano, 86 N.Y.2d 727 (1995) (District Attorneys retain the ultimate, nondelegable responsibility for prosecuting all crimes and offenses); People v. Ramos, 34 Misc.3d 914, 919 (Sup. Ct., Kings Co. 2012) (District Attorney may not cede his authority other than as prescribed by County Law Section 701). Put another way, all assistant district attorneys operate under the supervision of the district attorney, from whom their authority flows. Of course, the legislature could, if it were so minded, authorize a district attorney to appoint one of his assistants to supervise a prosecution in case the elected district attorney himself is disqualified. Until then, an assistant cannot replace his boss in case of disqualification. It is for this reason that petitioners’ insistence that because a District Attorney’s office need not recuse itself solely because members of its senior leadership may be conflicted, it follows that the District Attorney himself need not recuse himself, is simply fatuous (Petitioners’ Brief at 25-27). This ignores the fundamental difference between the elected district attorney himself and any of the assistants that he might have – it is only the district attorney with the fundamental, nondelegable duty to prosecute crimes in his county. Obviously, an ethical wall can be constructed between 50 subordinate lawyers in a particular office to resolve conflict fears; this cannot be used to shield an elected district attorney for he, not his chief assistant, executive assistant or other subordinates represents the People in every prosecution in his county. This is precisely what this Court held in Schumer v. Holtzman, supra, and this rule has been regularly applied since. See, e.g., Haggerty v. Himelein, 89 N.Y.2d 431, 436 (1997) (In absence of transfer of fundamental and ultimate responsibility of the Cattaraugus District Attorney regarding case to Attorney-General or his Assistants, petition seeking to prohibit their involvement denied). It is of absolutely no moment that the County Law requires an elected district attorney to deposit in the county clerk’s office a list of those individuals who are to act in the district attorney’s stead in case of his absence. County Law § 702(4). That subdivision simply does not permit what petitioners maintain that it does – replacement of an elected district attorney by one of his assistants in case he is disqualified. Section 702 allows assistant district attorneys to exercise the district attorney's power, but not to take on his fundamental responsibilities. After all, the elected district attorney holds the “ultimate, nondelegable responsibility for prosecuting all crimes and offenses.” People v. Soddano, 86 N.Y.2d 727, 728 (1995). And, while subdivisions 3 and 4 carefully extend the district attorney’s power to his assistants during his “absence or inability,” they do not extend the fundamental responsibility to an assistant district attorney, when, as is the predicate in County Law Section 701, the district attorney shall not be in attendance at a term of any court of 51 record, which he or she is by law required to attend, or is disqualified from acting in a particular case. That petitioners feel compelled to add, as an exhibit to their brief, a copy of the order of succession filed by respondent Donovan demonstrates the poverty of this argument. If anything, what has been demonstrated is that respondent Donovan has complied with County Law Section 702(4) which requires the filing of such a document. In fact, if petitioners’ view about the ability of an assistant district attorney to be given all the powers and responsibilities of the elected district attorney was the law, there would be no need whatever for County Law Section 701. After all, in the typical matter for which a district attorney seeks appointment of a special district attorney, it is his conflict that requires resort to the special district attorney process. If that conflict could be so blithely cured by the ethical wall petitioners urge, there would be no need whatever for County Law 701, other than in counties with no assistant district attorneys. As of this writing, there are no longer any such counties. In support of their notion, petitioners spend a number of pages of their presentation, observing that when a conflict exists in matters handled by the United States Department of Justice or the New York State Department of Law, those agencies are not relieved from representation but, it appears, arrange for other replacements within those respective agencies (Petitioners’ Brief at 27-30). The attempted analogy fails, however, for while the district attorney’s appointees as 52 assistants are fungible, it does not follow that the elected chief executive of the office can be replaced by one of his subordinates. It is he who has the ultimate, nondelegable obligation to prosecute all cases in the county and unless the County Law were to authorize appointment of a subordinate to serve as district attorney for the particular case, it simply cannot be done. Put simply, this contention presents what petitioners wish were the law. Unfortunately for them, the County Law is explicit about what must be done in case of a conflict. It is even more curious that petitioners cite the recusal of the chief of the trial division of the New York County District Attorney’s Office in the Dominique Strauss Kahn matter as supporting their position (see Petitioners’ Brief at 27, fn. 8). The more relevant matter for consideration is People v Joseph Stevens & Co., Inc., 31 Misc. 3d 1223(A), 1223A (Sup. Ct., New York Co. 2011). In Stevens, certain defendants had been briefly represented by District Attorney Cyrus Vance, Jr. in connection with the execution of search warrants obtained by the New York County District Attorney’s Office prior to Vance’s election as District Attorney. Upon his assumption of office, these defendants moved to disqualify Vance and the People moved for appointment of a special district attorney pursuant to County Law § 701. Such an appointment was made. What this reflects, quite obviously, is recognition in that office that, although the District Attorney himself could be walled off from any involvement in the prosecution itself, the office’s continued involvement in the matter was inconsistent with the 53 fundamental responsibilities of the office, requiring resort to County Law Section 701.7 In an additional presentation of the special district attorney framework as petitioners wish it to be, they list a number of “compelling reasons” for not appointing a private practitioner as special district attorney (Petitioners’ Brief at 30- 38). These may be divided into two classes of complaint; the first is a complaint about the identity of the appointee and the second is about the practice of appointing private practitioners at all. “Compelling” they may be, but their existence is beside the point. First, as has been noted, Article 78 relief is available to contest a judicial order appointing a special district attorney when the extraordinary remedy of prohibition lies only where there is a clear legal right to the relief sought. Matter of Morgenthau v. Erlbaum, 59 N.Y.2d at 147; Matter of Dondi, 40 N.Y.2d at 8; Matter of Soares v. Herrick, 20 N.Y.3d at 139. Petitioners have no clear right to the removal of Special District Attorney Adler. As long as the special district attorney who has been appointed is an individual who may be appointed pursuant to County Law Section 7 This is not to say that that appointment went smoothly. As described in the opinion, the Attorney General was initially appointed as special district attorney but when the defendants commenced an Article 78 petition seeking to invalidate the appointment, the District Attorney sought from the governor an order superseding him and replacing him with the Attorney General pursuant to Executive Law Section 63(2). It would appear that the basis for the challenge to the Attorney General’s appointment was that he is not among the attorneys authorized to act as special district attorney under County Law Section 701. 54 701, it matters not at all that it might be better if such an appointment is not made. Special District Attorney Adler meets the criteria for appointment listed in the statute. County Law Section 701(1)(a) provides that the appointing court may “appoint some attorney at law having an office in or residing in the county, or any adjoining county.” Special District Attorney Adler resides in Kings County, which, as a matter of law, adjoins Richmond County. NYC Administrative Code § 2-202(5) (“The borough of Staten Island shall consist of the territory known as Richmond county, which shall contain all that part of the city and state, bounded on the north, on the west and on the south by the state boundary line, and bounded on the east by the borough of Brooklyn and county of Kings, including Staten Island, Island of Meadows, Pralls Island, Hoffman Island, Swinburne Island, that part of Shooters Island within the state of New York, and all other islands or parts thereof situate within the aforedescribed bounds.”); Sherril v. O'Brien, 188 N.Y. 185, 225 (1907). (“Richmond county, with a population of 66,441, is an island literally contiguous to no other territory in the state. It is practically contiguous to New York and Kings counties”). Payne v. O'Brien, 114 A.D. 890, 892 (3d Dept. 1906) (“[T]he Revised Statutes [] fixes the boundaries of Richmond county so that it is contiguous to no county in the State other than Kings county”). It is certainly true that a special district attorney who is a member of the private bar may well have conflicts that an elected district attorney may not have (see Petitioners’ Brief at 33-34). But like an elected district attorney, a special district 55 attorney is subject to the Rules of Professional Conduct and if he should have a conflict, he is duty bound to step aside. As already discussed, Rule 1.16(b)(1) explicitly provides that a lawyer shall withdraw from the representation of a client when the lawyer knows or reasonably should know that the representation will result in a violation of the Rules of Professional Conduct. Attorneys, private or public, are aware of their responsibilities under the rules and the risks of discipline should the rules be violated. Absent any specific showing of a conflict, a presumption of regularity must attend any prosecutor’s decision to continue in a matter. Moreover, any complaint about the identity of the private practitioner who has been appointed is surely cognizable in the course of any criminal prosecution that might result from the appointment. After all, there is little doubt that a criminal defendant may seek the disqualification of the prosecutor pursuing the case against him, see, e.g., People v Adams, supra; People v. Shinkle, supra; People v. Zimmer, supra. This is obviously not limited to an effort to disqualify an elected district attorney. The special district attorney appointed pursuant to the County Law “shall possess the powers and discharge the duties of the district attorney during the period for which he or she shall be appointed.” County Law § 701(4); Harvey v. County of Rensselaer, 83 N.Y.2d 917, 918 (1994).8 Since Special District Attorney Adler is the 8 This being the case, it is simply incorrect to contend, as petitioners do, that “a special prosecutor’s mission is different from that of an elected district attorney who is charged solely with seeking justice” (Petitioners’ Brief at 34-35). In fact, there can be little doubt that a special district attorney is charged with the same ethical responsibilities and obligations as an elected district attorney. In 56 Richmond County District Attorney for purposes of the investigation and possible prosecution of crimes arising from a 2009 election on Staten Island, any remedy available to petitioners as against respondent Donovan would be available as against the Special District Attorney as well. See People v. Gallagher, 143 A.D.2d 929 (2d Dept. 1988) (observing that special district attorney had been properly removed due to a conflict). Petitioners further complain that: District Attorney Donovan was elected by the citizens of Richmond County and is subject to the vetting process that an election produces. By contrast, the people of Richmond County have no say in the selection of Roger Bennet Adler, and no access to information that would be made public if the special prosecutor underwent the same vetting process. The special prosecutor is an unaccountable and unknown entity who from one day to the next is transformed from a typical private practitioner to one with the vast powers of the District Attorney. Petitioners’ Brief at 30-31 (emphasis added). Setting aside whether petitioners have standing to raise the interests of the voters of Richmond County,9 it is somewhat difficult to understand petitioners’ complaint. Carried to its logical conclusion, it would mean that any time an elected particular, Rule 3.8 which outlines a prosecutor’s special responsibilities is certainly applicable to a special district attorney. In the only circumstance respondent Donovan has been able to locate in which this was discussed, an independent counsel appointed in Delaware acknowledged that his conduct was subject to that rule. See Press Release, Delaware Department of Justice available at http://www.delawareonline.com/assets/pdf/BL21719713.PDF , last visited January 29, 2014. 9The idea that voters have standing to contest the decision made by an executive who is subject to election is a rather dubious one, in respondent Donovan’s view. The separation of powers doctrine contemplates that the voters or their elected representatives will check any abuse by the Executive through the political process -- by means of elective change, constitutional amendment or corrective legislation. Mulroy v. Carey, 43 N.Y.2d 819, 823 (1977) (Cooke, J., concurring). 57 district attorney had to be replaced for whatever reason, petitioners would view that appointment as illegitimate because the appointee will not have been vetted by the election process. Such a view would necessarily leave vacant the office of district attorney in any county in which that official has been elected to higher office, has retired, or has passed away, a patent absurdity. Nor is it for petitioners to assert what they believe are the interests of the voters of Staten Island. In their view, the interests of the electors in Richmond County is that all investigations and prosecutions in the county are conducted by the elected district attorney. But the voters in the county have at least as great an interest, if not a greater one, in a chief law enforcement officer who is not afraid, on the one hand, to prosecute all crimes in the county regardless of who may have committed them, and on the other hand, to step aside when his continued participation the matter might force him to engage in conduct prohibited by the Rules of Professional Conduct. A chief prosecutor willing to skirt the line when he declines to recuse himself in case of conflict is a prosecutor who may skirt the line with respect to other professional obligations, including obligations that directly relate to the guilt or innocence of a criminal defendant. All citizens of the state are entitled to a district attorney who maintains for himself and sets an example for his staff of sensitivity to the ethical obligations public prosecution entails. The electors on Staten Island are entitled to no less. 58 Moreover, implicit in the concerns voiced by petitioners concerning selection of a private practitioner as the special district attorney is that that individual exercise of the special district attorney’s power will necessarily be overbroad and thus, abusive. There is no basis for such concern. The County Law is very careful in limiting such appointments to a “particular case,” see People v Leahy, 72 N.Y.2d at 510, which, crucially, limits the powers of the special district attorney to a single matter. It is this limitation that makes apparent that petitioners are ill-served by their citation to Judge Joseph W. Bellacosa’s Cogitations Concerning the Special Prosecutor Paradigm: Is the Cure Worse Than the Disease?, 71 Alb. L. Rev. 1, 9 (2008). The special prosecutor issue which he addressed was not the appointment of special district attorneys pursuant to County Law Section 701; rather, Judge Bellacosa’s ruminations concerned the creation of the Special Statewide Prosecutor following the Knapp Commission hearings into corruption in the New York City Police Department. See 9 NYCRR 1.55-1.59 (superseding New York City’s elected District Attorneys with the Attorney General pursuant to Executive Law § 63[2]). As even a cursory perusal of those orders reflect, the orders were breathtaking in their scope, authorizing investigation and prosecution into a wide variety of crimes and identifying the targets generally as any public officer or employee of the state or any political subdivision thereof or of any governmental instrumentality within the state, or any person exercising the functions of any such public officer or employee. It need hardly be said 59 that such an appointment of a special district attorney would have been invalid because it did not point to a “particular case.”10 No more helpful to petitioners’ cause is their reference to an article about the dangers of prosecutions conducted by private attorneys. What distinguishes the appointment here from those decried in Robert A. Fairfax, Jr.’s Delegation of the Criminal Prosecution Function to Private Actors, 43 U.C. Davis L. Rev. 411 (2009) is that the delegations to which Fairfax refers are without judicial appointment supervision but are a product of outsourcing of the prosecution function. Where, as here, the so- called delegation has been ordered by a court, the concerns cited simply do not exist. In fact, it is clear that the choice of Special District Attorney Adler bears no resemblance whatever to either the Bellacosa or Fairfax models. In her affidavit filed in the Appellate Division in connection with this matter, respondent Fisher affirmed that she had determined that Special District Attorney Adler “was a suitable and available appointee as special prosecutor in this matter” (Fisher Affirmation at RA87). She certainly conducted the necessary vetting, and inasmuch as the County Law authorizes Special District Attorney Adler’s appointment, this complaint is, as noted, directed to the wrong branch of government. 10 It is worthy of note that it was Judge Bellacosa who authored both the article petitioners cite and People v. Leahy, supra, which enforced the “particular case” limitation that distinguishes the Special Prosecutor appointment from the appointment of a special district attorney. Nothing in Leahy suggests that Judge Bellacosa shares petitioners’ view of the special district attorney mechanism. 60 More to the point, respondent Donovan submits that petitioners misapprehend the nature of accountability in cases such as this. Certainly, the district attorney is accountable for his decisions but this includes his decision to seek or not to seek a special district attorney in the appropriate case. This decision, like a decision to emphasize prosecutions of certain crimes because they may be a particular plague in a county but declining to prosecute others because of a lack of resources, is reviewable at the polls every four years when the district attorney must stand for election.11 For the same reason, petitioners’ reliance on Justice Scalia’s dissent in Morrison v. Olson, 487 U.S. 654, 730 (1988) is of no aid to their argument (Petitioners’ Brief at 34-35). At issue was the separation of powers problem caused by a statute that authorized a court to appoint independent counsel to investigate and prosecute executive branch criminality. Justice Scalia’s view, which he held alone, was that it removed from the executive one of the powers entrusted to it exclusively. But he went on to suggest, as petitioners point out, that appointment of such counsel was dangerous because it empowered a prosecutor to go after a single target, with no countervailing balance to insure that the prosecutor would engage in the normal processes of exercise of his discretion. In other words, the statute effectively removed the most important check on prosecutorial discretion – the need to allocate 11 Petitioners cannot complain that this decision has been kept from the electors of Richmond County. Apart from the fact that the appointment order explicitly states that it is not to be kept under seal, the request for a special district attorney as well as the fact that one had been appointed was publicly reported (RA 99-101). 61 resources in an efficient manner. The “particular case” rule resolves this concern; the nature of the special district attorney’s mission is limited to that in the order appointing him and any enlargement of it requires that a court approve the expansion. Petitioners’ focus on the identity of the Special District Attorney is particularly puzzling. It has long been recognized that an elected prosecutor system, such as that in New York and at least 30 states, renders those elected pursuant to those frameworks amenable to political pressure being placed on that elected official. See, e.g., Michael J. Ellis, The Origins of the Elected Prosecutor, 121 Yale L.J. 1528, 1565 (2012)(observing that “it was not long [after the elected prosecutor system was put in place that] party politics began to influence criminal prosecution”). It is thus difficult to comprehend petitioners’ unhappiness with Special District Attorney Adler who, simply by virtue of the fact that he is not an elected official, is immune from such pressures. Such immunity can only redound to the benefit of any target of an investigation. To the extent petitioners are unhappy with the appointment of Special District Attorney Adler, with the notion that private practitioners can be appointed at all, or that the appointment of private practitioners as special district attorneys place an undue burden of the public fisc (Petitioners’ Brief at 37), they are welcome to petition their elected officials for a change in the law; right now, the County Law authorizes appointment of a replacement for the elected district attorney in circumstances like 62 those presented here. That being the case, the policy reasons petitioners press for declining to make an appointment are more properly directed to the Legislature. G. The Public Confidence In The Prosecutorial System Was Ensured By the District Attorney’s Recusal Petitioners’ contention that public confidence in the prosecutorial system is undermined by appointment of a private practitioner as special district attorney is similarly spurious. If anything is clear from People v. Adams, supra, it is that replacement of an elected district attorney is necessary, in the appropriate circumstance, to insure public confidence in the criminal justice system. The confidence about which the cases speak is illuminated by People v. Adams and People v. Zimmer. In the former, the People had failed to make a plea offer to a defendant, charged with harassing a judge before whom they regularly appeared, commensurate with offers made to other defendants who had committed the same crime. As a result, “[b]ecause the District Attorney's office failed to take steps to dispel the appearance of inappropriate disparate treatment, we conclude that this is one of those rare cases in which a significant appearance of impropriety was created, requiring disqualification.” People v Adams, 20 N.Y.3d at 613. In the latter, the elected district attorney was also counsel to and a stockholder of the corporation in the course of whose management the defendant was alleged to have committed the "white collar" crimes with which he was charged and of which he was ultimately convicted. In that circumstance, this Court concluded that “[i]t was 63 important that the [prosecutorial] responsibilities, carried out in the name of the State and under the color of the law, be conducted in a manner that fostered rather than discouraged public confidence in our government and the system of law to which it is dedicated. This concern, that those occupying prosecutorial office be jealous of the evidences as well as the substance of integrity, was not to be discounted. In particular, the District Attorney, as guardian of this public trust, should have abstained from an identification, in appearance as well as in fact, with more than one side of the controversy.” People v. Zimmer, 51 N.Y.2d at 395. What these cases make obvious is that a district attorney must recuse himself when his involvement in a prosecution could easily lead a neutral observer to believe that the matter is not being prosecuted simply after an analysis of the facts and the relevant law but is the result of a separate concern that that elected official might have. In Adams, the complainant was a judge before whom the district attorney regularly litigated and the concern was that the district attorney’s decision about a possible disposition was infected by a desire to remain on good terms with that judge. In Zimmer, the district attorney was a shareholder and at some point became corporate counsel of the corporation victimized by defendant Zimmer. In other words, public confidence in the prosecutorial system is insured when there can be no doubt that the prosecution is being pursued without fear or favor. Here, respondent Donovan made his concerns in this regard known to respondent Fisher, who was 64 then obliged to appoint a special district attorney. It is that appointment that insures the confidence in the system about which petitioners profess such great concern. * * * * * * Respondent Donovan’s decision to recuse himself from involvement in an investigation of events surrounding the 2009 Staten Island City Council election was an exercise of his executive discretion beyond Article 78 review. That he is being criticized for acting in the highest traditions of the profession reflects not on his keen understanding of his obligations as the Richmond County District Attorney, but on the political nature of a criminal justice system in which district attorneys are elected. In any case, petitioners certainly have no clear legal right to prosecution by respondent Donovan; his decision that he needed to step aside was a plainly discretionary one as well. Hence, Article 78 relief was plainly unwarranted. Further, petitioners’ misidentification of the standard that must be met before an elected district attorney may recuse himself makes plain that his petition was properly denied. In the end, petitioners’ insistence that respondent Donovan could not recuse himself is rather puzzling. The typical target of a prosecution or investigation is much less concerned about the identity of his prosecutor than the evidence that that individual may have collected. Nevertheless, petitioners impugn the reputations of both respondent Donovan and Special District Attorney Adler, the former for purportedly avoiding what they view as a difficult and unpopular decision, and the latter simply because he accepted a call to public service and agreed to serve as special 65 district attorney at whatever cost that might have to his legal practice. In light of respondent Donovan’s good faith conclusion that involvement in the matter was debarred by a conflict of interest, petitioners’ success on this point would necessarily mean that the matter would not be investigated fully. This certainly is not in the interest of the voters on Staten Island, whose interests petitioners profess to defend (Respondent’s Brief at 30-31). CONCLUSION The judgment dismissing the petition should be affirmed. Respectfully submitted, DANIEL M. DONOVAN, JR. Respondent Pro Se District Attorney Richmond County 130 Stuyvesant Place Staten Island, New York 10301 (718) 556-7010 MORRIE I. KLEINBART Assistant District Attorney Of Counsel March 26, 2014