Firewall

A criminal conviction was affirmed by the New York Appellate Division for the First Judicial Department

In this case prosecuted by the Attorney General because of the District Attorney’s recusal, several assistant district attorneys were properly permitted to participate in the prosecution as special assistant attorneys general. At an early stage of this prosecution, several of defendant’s codefendants were represented, for a period of five days, by a firm that included Cyrus Vance. Nearly four years later, Vance became District Attorney and sought to withdraw from the case, despite having no recollection of meetings or conversations with the codefendants his former firm had represented. The Attorney General’s Office was appointed, and certain New York County prosecutors who had already been working on this highly complex case were cross-designated so they could continue to participate. The Attorney General’s Office instituted extensive firewall protocols to isolate the District Attorney’s office from the cross-designated prosecutors. Defendant does not claim that he was prejudiced by any conflict, but only that his motion to disqualify the cross-designated prosecutors should have been granted on the ground of appearance of impropriety. However, this was not one of the “rare situations” where, even in the absence of prejudice, “the appearance of impropriety itself is a ground for disqualification” (People v Adams, 20 NY3d 608, 612 [2013]). The conflict was remote to begin with, it did not directly involve defendant himself, there was a legitimate reason for the cross-designation of the prosecutors already involved in the case, and there were suitable protective measures.

(Mike Frisch)