
    The People of the State of New York, Respondent, v David Dunlop Shinkle, Appellant.
    Argued November 12, 1980;
    decided December 18, 1980
    
      POINTS OF COUNSEL
    
      Carl J. Silverstein and Sol Lesser for appellant.
    I. The District Attorney’s office should in the interest of justice have been precluded from prosecuting David Shinkle and a special prosecutor appointed, because of the transfer of one of his defense attorneys Edward Leopold to a supervisory position in the very office that did in fact prosecute Jiim. (People v De Freese, 71 AD2d 689; Cardinale v Golinello, 43 NY2d 288; People v Fielding, 158 NY 542; People v Causer, 43 AD2d 899; People v Kyser, 52 AD2d 1072; People v Graydon, 59 Misc 2d 330; Matter of Fox v Shapiro, 84 Misc 2d 223; People v Cruz, 55 AD2d 921; Laskey Bros. of W. Va. v Warner Bros. Picture’s, 224 F2d 824; People v Wilkins, 28 NY2d 53.) II. The summation of the Assistant District Attorney, clearly constituted prosecutorial misconduct, in that it belittled the defense, and called upon community pressures and fears and thus prejudiced the jury and produced a wrongful conviction. (Berger v United States, 295 US 78; People v Damon, 24 NY2d 256; People v Adams, 21 NY2d 397; People v Mleczko, 298 NY 153; People v Steinhardt, 9 NY2d 267; People v Lombardi, 20 NY2d 266; People v Brunside, 52 AD2d 626; People v 
      
      Davis, 53 AD2d 870; People v Gioia, 286 App Div 528; People v Garcia, 40 AD2d 983.)
    
      Joseph Jaffe, District Attorney (Philip E. Conaty of counsel), for respondent.
    I. It was not error for the District Attorney and his staff to prosecute Shinkle. The appointment of a special prosecutor was not required to preserve the integrity of the prosecution. (People v De Freese, 71 AD2d 689; People v Loewinger, 37 AD2d 675, 30 NY2d 587; People v Cruz, 55 AD2d 921; Board of Educ. v Nyquist, 590 F2d 1241; Matter of Fox v Shapiro, 84 Misc 2d 223; Laskey Bros. of West Va. v Warner Bros. Pictures, 224 F2d 824.) II. The prosecution summation was proper and does not constitute prosecutorial misconduct requiring reversal. (People v Carborano, 301 NY 39; People v Garcia, 40 AD2d 983; People v Lombardi, 20 NY2d 266; People v Caruso, 45 NY2d 881; People v Offerman, 63 AD2d 795; People v Mayo, 64 AD2d 783; People v Finch, 57 AD2d 641; People v Patno, 55 AD2d 965; People v Gioia, 286 App Div 528.)
   OPINION OF THE COURT

Jones, J.

Defendant’s conviction must be vacated where the executive director of the Legal Aid Society who represented him in the beginning stages of the criminal action later joined the District Attorney’s office and remained there during the course of prosecution of the action, notwithstanding that means were designed and scrupulously pursued to insulate him from defendant’s case.

On March 8, 1977, the day after the events out of which the charges in this case arose, Sol Lesser, Esq., of the Legal Aid Society of Sullivan County, Inc., was assigned to represent defendant. Edward Leopold, Esq., then executive director of the Legal Aid Society, became actively involved as advisor to Lesser during the early stages of the criminal proceeding. In this capacity Leopold interviewed defendant extensively, was intimately familiar with the contents of his file, and assisted in the formulation of defense strategy. On December 23, 1977 Leopold resigned as executive director of the Legal Aid Society, and on January 12, 1978 he was appointed Chief Assistant District Attorney for Sullivan County and continued in that capacity during the trial of this action.

Conscious of the risks of conflict of interest, Leopold had “conflict” stickers placed on all pending cases in which the defendants were or had been represented by the Legal Aid Society during his tenure of office, the members of the staff of the District Attorney’s office were ordered, to refrain from discussing any of such cases with Leopold, and he was denied access to the files in such cases.

In late January, 1978, a proceeding under CPLR article 78 was instituted on defendant’s behalf to restrain the District Attorney’s office from prosecuting defendant because of conflict of interest and prejudice in consequence of the Leopold appointment. On February 22 the application was denied without prejudice to the right to apply to the Trial Judge for similar relief when the case was reached for trial. On reargument of the application in April the court adhered to its original decision. Defendant thereafter made a similar application to the trial court and that application, too, was denied. At the time of defendant’s trial from June 26 to July 7, 1978 Leopold was still Chief Assistant District Attorney of Sullivan County.

In affirming defendant’s conviction of rape in the first degree, petit larceny, unauthorized use of a motor vehicle and assault in the third degree, the Appellate Division, with two Justices dissenting, rejected defendant’s contention that his convictions should be reversed because of the dual role played by Leopold. This was error, and the convictions must be vacated.

The fact that the attorney who had initially represented defendant and participated actively in the preparation of his defense was chief assistant in the office of the prosecutor in the months preceding and during defendant’s trial inescapably gave both defendant and the public the unmistakable appearance of impropriety and created the continuing opportunity for abuse of confidences entrusted to the attorney during the months of his active representation of defendant. It is no answer that defendant offers no evidentiary proof of actual prejudice. In the circumstances such proof would most likely be out of defendant’s reach. Nor does it serve to protect the interests of defendant that procedures were devised and scrupulously followed to insulate Leopold from the prosecution of this case. The inherent impropriety of the situtaion is further demonstrated in this instance when, in an attempt to show that the insulation was practically effective, the People circuitously resorted to an affirmation from Leopold himself. In defendant’s perception it was his former attorney who was personally championing the People’s cause against him.

Defendant, and indeed the public at large, are entitled to protection against the appearance of impropriety and the risk of prejudice attendant on abuse of confidence, however slight (cf. People v Zimmer, 51 NY2d 390; Greene v Greene, 47 NY2d 447; Cardinale v Golinello, 43 NY2d 288; People v De Freese, 71 AD2d 689, 690 [dissenting opn by Mr. Justice James D. Hopkins] ; ABA Standards Relating to Prosecution Function, § 1.2; subds [a], [b], par [iii]; Code of Professional Responsibility, canon 9). We recognize that the rule applied in this case may impede the transfer of attorneys between offices of Legal Aid or Public Defender and of District Attorney. This circumstance, however, affords no basis to deny defendants the right to both the fact and appearance of unswerving and exclusive loyalty on the part of attorneys who represent them.

For the reasons stated, the order of the Appellate Division should be reversed, defendant’s convictions vacated, and the case remitted to County Court, Sullivan County, for further proceedings on the indictment.

Jasen, J.

(dissenting). Upon the conceded facts and circumstances present in this case, I would not hold, as the majority does, that it was improper for the Sullivan County District Attorney’s office to prosecute defendant Shinkle merely because a member of its staff had at one time acted as defendant’s cocounsel while a member of the Sullivan County Legal Aid staff.

To adopt, as the majority has, a per se disqualification rule effecting the entire staff of the office of the District Attorney, without a showing of prejudice or without requiring that even a question as to the integrity of the office of the District Attorney be raised, is both unnecessary and undesirable as a matter of policy. Mere speculation and innuendo should not be the basis for establishing a per se rule of automatic disqualification. Instead, in each case where a claim of conflict is alleged, the court should consider all the facts and circumstances present and determine, as a question of fact, whether a conflict of interest exists and whether the integrity of the prosecutor’s office has been compromised either in appearance or in actuality.

This is precisely what County Court and the Appellate Division did in this case. After considering all the facts and circumstances, both courts found that the former Legal Aid attorney, Edward Leopold, upon his appointment as Chief Assistant District Attorney, was deliberately isolated from the rest of the District Attorney’s office in all pending cases in which the defendants were represented by Legal Aid. “[0]nce Leopold assumed his position in the prosecutor’s office,” the Appellate Division found, “he took immediate affirmative steps to avoid any prejudice to defendant and any appearance of impropriety which might have resulted from his becoming Chief Assistant District Attorney. Not only did he have ‘conflict’ stickers placed on all cases involving the Legal Aid Society which were pending in the District Attorney’s office, but the staff of the office was ordered to refrain from discussing these cases with him and to deny him access to the files of such cases.” (73 AD2d, p 765.) This court is bound by such affirmed findings of fact unless there is no support in the record for such findings. (NY Const, art VI, § 3.) Yet, notwithstanding these affirmed findings of fact, the majority holds that defendant’s convictions for aggravated rape and other crimes should be reversed because, as a matter of law, there is present in this case an “appearance of impropriety and the risk of prejudice [to the defendant] attendant on abuse of confidence.”

What abuse of confidence and what appearance of impropriety has been shown? As I stated before, the record clearly demonstrates that Leopold, upon joining the office of the District Attorney, took affirmative steps to isolate himself, and the office of the District Attorney did in fact isolate him, from not only the defendant’s case, but all pending cases in which the defendants were represented by Legal Aid, thereby effectively avoiding any appearance of impropriety. Are we to imply that a reasonable person would believe that, accepting such undisputed facts, there is nevertheless an “appearance of impropriety” solely because Leopold had represented the defendant at an earlier date? I think not, for to do so, a reasonable person would be required to conclude that lawyers, under any and all circumstances, cannot be trusted to maintain the confidences and secrets of their clients, even where, as here, they attest under oath to no breach of ethics. Implicit also in such reasoning is that most, if not all, government lawyers cannot be trusted to discharge their public responsibilities faithfully. Implications such as these, in my view, are repugnant to the entire concept of the Code of Professional Responsibility adhered to by lawyers and should not be adopted by our court as the basis upon which a new per se rule of disqualification is announced.

I believe the better rule would be that unless there is some evidence presented to indicate actual prejudice to the defendant or there is some support in the record to question the integrity of the office of the District Attorney, no per se disqualification should be invoked. Where, as here, there is abolutely no evidence offered to indicate prejudice to the defendant or to raise even a question as to the integrity of the office of the District Attorney, it simply cannot be said that there is an “appearance of impropriety”.

According to the majority, “[i]t is no answer that defendant offers no evidentiary proof of actual prejudice [or abuse of confidences]” as “[i]n the circumstances such proof would most likely be out of defendant’s reach.” I cannot agree. For example, in this case, where defendant took the stand in his own defense, confidences disclosed by the defendant to Leopold, if any, could be detected during the cross-examination of the defendant. None are alleged or even suggested. Similarly, the disclosure of unfavorable witnesses and other harmful facts, if any, confidentially divulged to Leopold by the defendant could also be ascertained from the proof offered by the prosecution either in its case-in-chief or in rebuttal. Again, none are alleged or even suggested.

As a result of this court’s holding, a special prosecutor must now be appointed in every instance in which a defendant has been previously represented by counsel who is in the employ of the local District Attorney’s office when that defendant’s case comes to trial. Not only do I have grave misgivings as to the severe impact on the administration of justice which will be occasioned by this per se rule of disqualification, but the majority’s view that a special prosecutor will somehow eliminate the “appearance of impropriety” and the “risk of prejudice” which they attribute to defense counsel’s change of employment ignores the reality of the situation. For instance, in the case at bar, the special prosecutor that will be assigned to defendant’s case will have access to the same files prepared by the Sullivan County District Attorney’s office and no doubt will have contact with the attorneys of that office who were involved in the initial stages of defendant’s prosecution. Under these circumstances, it is somewhat anomalous that the majority finds solace in holding that the appointment of a special prosecutor will somehow expel the “appearance of impropriety” which they have found to so pervade the defendant’s case as to require reversal of his convictions merely because of Leopold’s presence in the office of the Sullivan County District Attorney at the time of the prosecution of the defendant.

Inasmuch as there are affirmed findings of fact that Leopold and the office of the District Attorney of Sullivan County took immediate affirmative steps to avoid any prejudice to defendant and to prevent even the appearance of impropriety, and where there was no evidence that the former Legal Aid attorney ever disclosed to the prosecution any information gained as a result of his prior representation of defendant or that the precautionary measures taken in isolating Leopold from the defendant’s case were ineffective, I would hold that it was not error for the office of the District Attorney of Sullivan County to prosecute the defendant and that the appointment of a special prosecutor was not required to preserve the integrity of the prosecution.

Accordingly, I would affirm the order of the Appellate Division.

Judges Gabrielli, Wachtler, Fuchsberg and Meyer concur with Judge Jones; Judge Jasen dissents and votes to affirm in a separate opinion in which Chief Judge Cooke concurs.

Order reversed, etc.  