PEOPLE v. ZINKHEN

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

The PEOPLE of the State of New York, Respondent, v. Thomas ZINKHEN, Appellant.

Decided: November 23, 2011

Before:  MERCURE, J.P., PETERS, MALONE JR., KAVANAGH and STEIN, JJ. Carl J. Silverstein, Monticello, for appellant. D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.

Appeal from a judgment of the County Court of Ulster County (Milano, J.), rendered October 1, 2009, upon a verdict convicting defendant of the crimes of burglary in the second degree, grand larceny in the fourth degree, criminal possession of stolen property in the fourth degree, forgery in the second degree and petit larceny.

In 2009, defendant was charged in an indictment with burglary in the second degree, grand larceny in the fourth degree, criminal possession of stolen property in the fourth degree, forgery in the second degree and petit larceny.   He thereafter moved for an order dismissing the indictment on the ground that actual prejudice, inherent impropriety and a conflict of interest arose from the fact that the Ulster County District Attorney had previously represented him while the District Attorney was a member of the Public Defender's office.   Alternatively, defendant requested that the District Attorney's office be disqualified and a special prosecutor be appointed.   County Court denied the motion and, following a trial, the jury convicted defendant as charged.   County Court sentenced defendant, as a prior violent felony offender, to concurrent prison terms resulting in an aggregate sentence of 12 years, to be followed by five years of postrelease supervision.   Defendant now appeals.

 We affirm.   Defendant's sole contention on appeal is that County Court erred in denying his motion to have the indictment dismissed or the District Attorney's office disqualified based upon a conflict of interest.   Generally, a public prosecutor should be removed “only to protect a defendant from actual prejudice arising from a demonstrated conflict of interest or a substantial risk of an abuse of confidence” (Matter of Schumer v. Holtzman, 60 N.Y.2d 46, 55, 467 N.Y.S.2d 182, 454 N.E.2d 522 [1983];  accord People v. Arbas, 85 A.D.3d 1320, 1322, 924 N.Y.S.2d 671 [2011], lv. denied 17 N.Y.3d 813, 929 N.Y.S.2d 801, 954 N.E.2d 92 [2011] ).   Here, defendant neither alleges any actual prejudice due to the prior representation nor provides any proof of actual prejudice or “a substantial risk of an abuse of confidence” (Matter of Schumer v. Holtzman, 60 N.Y.2d at 55, 467 N.Y.S.2d 182, 454 N.E.2d 522), despite being provided access to the Public Defender's case file regarding the previous representation.   Without such proof, we are left with an inference of impropriety, which is not enough on its own to require County Court to dismiss the indictment or disqualify the District Attorney's office (see People v. Terk, 24 A.D.3d 1038, 1041, 805 N.Y.S.2d 738 [2005];  People v. Vanderpool, 217 A.D.2d 716, 718, 629 N.Y.S.2d 307 [1995], lv. denied 86 N.Y.2d 847, 634 N.Y.S.2d 457, 658 N.E.2d 235 [1995] ).

ORDERED that the judgment is affirmed.

MALONE JR., J.

MERCURE, J.P., PETERS, KAVANAGH and STEIN, JJ., concur.

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