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Supreme Court, Appellate Division, Third Department, New York.

IN RE: Sweta PATEL, Petitioner, v. Thomas A. BRESLIN, as County Judge of Albany County, et al., Respondents.

Decided: November 29, 2007

Before:  MERCURE, J.P., PETERS, CARPINELLO, LAHTINEN and KANE, JJ. Thomas J. Marcelle, Albany, for petitioner. P. David Soares, District Attorney, Albany (Christopher D. Horn of counsel), for P. David Soares, respondent.

Proceeding pursuant to CPLR article 78 (initiated in this Court pursuant to CPLR 506[b][1] ) to prohibit respondent Albany County Judge from enforcing an order which disqualifies petitioner's attorney from representing her in a criminal action due to a conflict of interest.

In November 2006, petitioner was charged in an indictment with various counts relating to the illegal sale of steroids.   She retained attorney Phillip Steck, who is also a member of the Albany County Legislature, to represent her.   Thereafter, Steck moved in Albany County Court for a determination of whether he was disqualified from representing petitioner based upon Opinion 798 of the State Bar Association Committee on Professional Ethics, which provides that “[a] lawyer who is a member of a county legislature may not undertake criminal representation in cases involving members of a police department or district attorney's office over which the legislature has budget or appointment authority” (N.Y. St. Bar Assn. Comm. on Prof. Ethics Op. 798 [2006] ).   The court concluded that Steck must be permitted to withdraw as counsel, and granted the motion to withdraw.   Petitioner then commenced this CPLR article 78 proceeding seeking a writ of prohibition to prevent County Court from denying her counsel of her choosing.

  “[T]he extraordinary remedy of prohibition lies only where there is a clear legal right” and, with respect to pending criminal proceedings, “only when a court exceeds its jurisdiction or authorized power in such a manner as to implicate the legality of the entire proceeding, as for example, the prosecution of a crime committed beyond the county's geographic jurisdiction” (Matter of Rush v. Mordue, 68 N.Y.2d 348, 352-353, 509 N.Y.S.2d 493, 502 N.E.2d 170 [1986] ).   Prohibition may not be invoked to obtain collateral review of an error of law in a pending criminal proceeding;  rather, as an extraordinary writ, it lies in the discretion of the court to address only claims that involve harm that is substantial, implicates a fundamental constitutional right, “and where the harm caused by the arrogation of power could not be adequately redressed through the ordinary channels of appeal ” (id. at 354, 509 N.Y.S.2d 493, 502 N.E.2d 170 [emphasis added];  see La Rocca v. Lane, 37 N.Y.2d 575, 579-581, 376 N.Y.S.2d 93, 338 N.E.2d 606 [1975], cert. denied 424 U.S. 968, 96 S.Ct. 1464, 47 L.Ed.2d 734 [1976] ).   That is, “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” (Matter of State of New York v. King, 36 N.Y.2d 59, 62, 364 N.Y.S.2d 879, 324 N.E.2d 351 [1975];  see Matter of Lipari v. Owens, 70 N.Y.2d 731, 732-733, 519 N.Y.S.2d 958, 514 N.E.2d 378 [1987] ).   Moreover, while the right to counsel of one's own choosing is “constitutionally guaranteed,” as petitioner asserts, the right is “qualified” such that a defendant cannot, for example, “employ such right as a means to delay judicial proceedings” (People v. Arroyave, 49 N.Y.2d 264, 271, 425 N.Y.S.2d 282, 401 N.E.2d 393 [1980] ).   More fundamentally, “even if alleged error of constitutional dimension may be involved, prohibition does not lie because the removal of counsel would be reviewable on direct appeal” (Matter of Lipari v. Owens, 70 N.Y.2d at 733, 519 N.Y.S.2d 958, 514 N.E.2d 378;  see People v. Mackey, 175 A.D.2d 346, 347-348, 572 N.Y.S.2d 424 [1991], lv. denied 78 N.Y.2d 969, 574 N.Y.S.2d 949, 580 N.E.2d 421 [1991];  Matter of Barrett v. Vogt, 170 A.D.2d 860, 861, 566 N.Y.S.2d 682 [1991];  see also Matter of Kavanagh v. Vogt, 58 N.Y.2d 678, 679, 458 N.Y.S.2d 527, 444 N.E.2d 991 [1982];  cf. Matter of Heckstall v. McGrath, 15 A.D.3d 824, 825-826, 790 N.Y.S.2d 566 [2005] ).

ADJUDGED that the petition is dismissed, without costs.



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