State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: November 20, 2014 104458 

________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

STEPHEN A. GIROUX,

Appellant.

________________________________

Calendar Date: October 17, 2014

Before: Stein, J.P., McCarthy, Garry, Lynch and Devine, JJ.

__________

Sandra M. Colatosti, Albany, for appellant.

Andrew J. Wylie, District Attorney, Plattsburgh (Nicholas

J. Evanovich of counsel), for respondent.

__________

Garry, J.

Appeal from a judgment of the County Court of Clinton

County (McGill, J.), rendered May 24, 2010, upon a verdict

convicting defendant of the crimes of criminal sale of a

controlled substance in the third degree and criminal possession

of a controlled substance in the third degree.

Defendant was charged with one count each of criminal sale

of a controlled substance in the third degree and criminal

possession of a controlled substance in the third degree arising

out of his sale of cocaine to a police informant. Defendant

thereafter moved for the disqualification of the Clinton County

District Attorney and the appointment of a special prosecutor on

the grounds that the District Attorney had previously represented

him in several criminal and domestic relations matters and had
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obtained potentially prejudicial confidential information. 

County Court denied defendant's motion. Defendant was ultimately

convicted as charged following a jury trial, and now appeals.

Defendant's sole contention upon appeal is that County

Court erred in denying his motion for a special prosecutor,

because the District Attorney had previously represented him on

driving while intoxicated charges and various domestic relations

matters and, while acting in that capacity, had obtained

confidential information that created a substantial risk of

prejudice with regard to the drug charges. The District Attorney

admittedly had, in the course of his prior private practice, been

associated with a law firm that had represented defendant in some

matters. However, the District Attorney asserted that he had not

served as defendant's primary attorney, and that his involvement

in defendant's representation was significantly limited; he

stated that he had not obtained any confidences or information,

and had no recollection of any privileged communications with

defendant or conversations relative to any alleged use of drugs

or alcohol abuse. In sum, the District Attorney denied having

obtained any confidential information that could be prejudicial

to defendant in the pending prosecution.

Ordinarily, "[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" (People v Zinkhen, 89 AD3d 1319, 1320

[2011], lv denied 18 NY3d 964 [2012] [internal quotation marks

and citations omitted]; see Matter of Schumer v Holtzman, 60 NY2d

46, 55 [1983]; People v Terk, 24 AD3d 1038, 1041 [2005]). Here,

the fact that the District Attorney may have previously

represented defendant in prior, unrelated criminal matters,

without more, does not require his disqualification (see People v

Vanderpool, 217 AD2d 716, 718 [1995], lv denied 86 NY2d 847

[1995]; People v Early, 173 AD2d 884, 885 [1991], lv denied 79

NY2d 1000 [1992]). Further, although the District Attorney

sought to impeach defendant using prior contempt convictions

arising from marital problems that defendant alleges he had

discussed with the District Attorney, County Court's refusal to

allow any inquiry into the underlying facts of these convictions

eliminated any possible avenue by which the District Attorney
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might have utilized any confidential information that he may have

acquired (see People v Rankin, 149 AD2d 987, 987 [1989]). As 16

years had passed since any such alleged confidences had been

shared, the passage of time had also diminished the risk of

prejudice (see People v Martin, 2 AD3d 1336, 1337 [2003], lv

denied 1 NY3d 603 [2004]; People v Vanderpool, 217 AD2d at 718). 

As defendant did not demonstrate a substantial risk of an abuse

of confidence or any actual prejudice, we find no error in County

Court's determination (see People v Zinkhen, 89 AD3d at 1320;

People v Arbas, 85 AD3d 1320, 1322 [2011], lv denied 17 NY3d 813

[2011]). 

Stein, J.P., McCarthy, Lynch and Devine, JJ., concur.

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court