People v. Breedan

193 A.D.3d 756

141 N.Y.S.3d 874 (Mem)

The PEOPLE, etc., respondent,

v.Darren BREEDAN, appellant.

2018–10485

Ind. No. 5421/91

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

Argued—March 22, 2021

April 7, 2021

Justin C. Bonus, Forest Hills, NY, for appellant.

Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Camille O'Hara Gillespie of counsel), for respondent.

CHERYL E. CHAMBERS, J.P., LEONARD B. AUSTIN, HECTOR D. LASALLE, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

Appeal by the defendant, by permission, from an order of the Supreme Court, Kings County (Bruce M. Balter, J.), dated July 10, 2018, which denied, without a hearing, the defendant's motion pursuant to CPL 440.10 to vacate a judgment of the same court (Robert S. Kreindler, J.) rendered March 25, 1993, convicting him of criminal possession of a weapon in the second degree (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the order is reversed, on the law, and the matter is remitted to the Supreme Court, Kings County, for a hearing in accordance herewith and a new determination thereafter of the defendant's motion pursuant to CPL 440.10 to vacate the judgment rendered March 25, 1993.

In 1991, the defendant, along with codefendant Orin Bobb and two others, were charged by Kings County indictment, inter alia, with acting in concert to commit the offenses of murder in the second degree, attempted murder in the second degree, and criminal possession of a weapon in the second degree (three counts). Bobb was initially represented by Michael Vecchione. In January 1992, Vecchione joined the Kings County District Attorney's office, and new counsel was appointed for Bobb. In April 1992, the defendant was offered a plea and cooperation agreement. The agreement was signed and approved, on behalf of the Kings County District Attorney's office, by Michael Vecchione, as Chief of the Trial Division–Trial Cadre.

The defendant rejected the plea agreement and a jury trial was held, after which he was acquitted of the murder charges and convicted of criminal possession of a weapon in the second degree (two counts). The defendant moved pursuant to CPL 440.10 to vacate the judgment of conviction, asserting that his conviction was obtained in violation of his due process rights in light of Vecchione's participation in the prosecution of his case. The Supreme Court denied the motion without a hearing. A Justice of this Court granted the defendant leave to appeal.

A prosecutor's "paramount obligation is to the public" ( People v. Zimmer, 51 N.Y.2d 390, 393, 434 N.Y.S.2d 206, 414 N.E.2d 705 ), and "a defendant, as an integral member of the body politic, is entitled to a full measure of fairness" from that public officer ( id. at 393, 434 N.Y.S.2d 206, 414 N.E.2d 705 ). Here, the defendant asserts, among other things, that Vecchione was in a position to use privileged information learned through prior representation of the defendant's accomplice in the crime charged, thus giving the People an unfair advantage in the defendant's case (see generally Matter of Schumer v. Holtzman, 60 N.Y.2d 46, 55, 467 N.Y.S.2d 182, 454 N.E.2d 522 ). Generally, a public prosecutor should not be removed from prosecuting a case "unless necessary to protect a defendant from ‘actual prejudice arising from a demonstrated conflict of interest or a substantial risk of an abuse of confidence’ " ( People v. English, 88 N.Y.2d 30, 33, 643 N.Y.S.2d 16, 665 N.E.2d 1056, quoting Matter of Schumer v. Holtzman, 60 N.Y.2d at 55, 467 N.Y.S.2d 182, 454 N.E.2d 522 ). "[T]he appearance of impropriety, standing alone, might not be grounds for disqualification" ( People v. Herr, 86 N.Y.2d 638, 641, 635 N.Y.S.2d 159, 658 N.E.2d 1032 [internal quotation marks omitted]).

Under the particular circumstances of this case, in which evidence was presented suggesting that Vecchione was directly involved in the defendant's prosecution after having represented his accomplice in the charged crime (cf. People v. English...