People v. De Freese

—Appeal by defendant from a judgment of the County Court, Orange County, rendered February 11, 1976, convicting him of grand larceny in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial of defendant’s motion to disqualify the District Attorney and to have a special prosecutor appointed to prosecute the case. By order dated May 1, 1978, this court remitted the case to the County Court for a hearing to afford the defendant the opportunity to demonstrate that he had been prejudiced by his representation prior to the trial by the then Chief Attorney of the Legal Aid Society of Orange County, who subsequently accepted an interim appointment as Orange County District Attorney (Norman Shapiro). The appeal was held in abeyance in the interim (People v De Freese, 63 AD2d 653). The County Court has complied and rendered a report in accordance therewith. Judgment affirmed. At the hearing it was established that Mr. Shapiro personally represented defendant at his arraignment on November 6, 1974, that he was Chief Attorney of the Orange County Legal Aid Society until August 19, 1975, and that he had personal knowledge of defendant’s case while he was with that organization. The hearing record also reveals that as soon as he was appointed District Attorney, sometime after August 19, 1975, Mr. Shapiro ordered that all pending cases in which defendants were represented by Legal Aid, be physically separated from other pending cases and placed under the direct and sole responsibility of Assistant District Attorney Martin Goldberg. After being placed in full charge of such cases, Mr. Goldberg authorized their disposition, assigned other Assistant District Attorneys to try them, and reported to no one about anything pertaining to them. With respect to defendant’s case, Mr. Goldberg assigned Assistant District Attorney Zeccola to handle it. The latter prepared and tried the case against defendant. Mr. Shapiro never discussed the case with either Mr. Goldberg or Mr. Zeccola. In fact, except in one instance, Mr. Shapiro, while District Attorney, never discussed defendant or his case with anyone. The one exception involved a threatening letter sent defendant at the jail which was intercepted by the Sheriffs office and forwarded to Mr. Shapiro as District Attorney. Since the missive had been sent by United States mail, Mr. Shapiro forwarded the matter to postal authorities. Based on the foregoing facts we are convinced that during his tenure as District Attorney, Mr. Shapiro completely and effectively isolated and disassociated himself from defendant’s case and the prosecution thereof. Moreover, it is manifest from the record that defendant has not been demonstrably prejudiced by Mr. Shapiro’s prior affiliation. Accordingly, the judgment should be affirmed (see People v Cruz, 60 AD2d 872; see, also, People v Loewinger, 37 AD2d 675, affd 30 NY2d 587). Mollen, P. J., Titone and Shapiro, JJ., concur.