Ex-Judge Loses Bid to Prosecute an Old Case

     ALBANY, N.Y. (CN) – The Columbia County district attorney cannot prosecute a case he formerly adjudicated as a judge, a New York appeals court ruled.
     “A defendant in a criminal case should not find himself or herself in the unenviable position of being prosecuted by the former judge who had earlier presided over the case,” Justice John Egan Jr. wrote for a four-member panel. “Judiciary Law Section 17 bars such a practice and petitioner’s application should be dismissed.”
     Later, Egan concludes that “the statute, to our reading, could not be more clear.”
     Paul Czajka served 16 years as county court judge in Columbia before resigning in May 2011 to run for district attorney. Such courts in New York primarily handle criminal trial matters.
     As a judge in 2010, Czajka had presided over the initial arraignment and other preliminary proceedings involving Nicholas Fox, who had been charged with fourth-degree criminal possession of a weapon, a misdemeanor.
     After winning the DA election and assuming office in January, Czajka took over Fox’s prosecution.
     Fox asked that Czajka be removed from his case as DA, and County Court Judge Richard Koweek consented, citing Section 17. Koweek, elected to succeed Czajka as judge, named the Greene County DA as a special district attorney to handle the Fox case.
     Czajka filed an Article 78 petition to overturn Koweek’s decision, arguing that Section 17 did not apply because he was an elected prosecutor.
     The Third Judicial Department of the New York Supreme Court’s Appellate Division disagreed.
     “Petitioner’s status as a constitutional officer … does not render him immune from the Rules of Professional Conduct or, more to the point, Judiciary Law Section 17, which provides that ‘[a] judge or surrogate or former judge or surrogate shall not act as attorney or counsellor in any action, claim, matter, motion or proceeding, which has been before him [or her] in his [or her] official character,'” Egan wrote for the panel.
     “To the extent that petitioner argues that ‘the unique characteristics of the role and duties of a prosecutor’ trump the plain language of – and the ethical and policy considerations underlying – Judiciary Law Section 17, we are not persuaded,” Egan added. “Notably, had the Legislature wished to carve out an exception for district attorneys (or any other constitutional officer, for that matter), it surely could have done so. Absent such qualifying or limiting language, the statutory prohibition is absolute and mandates petitioner’s disqualification as district attorney in Fox’s criminal prosecution.” (Parentheses in original.)
     Noting the “bright-line disqualification rule” in Section 17, the panel declined to consider whether any actual prejudice or appearance of impropriety in Fox’s case would have been enough to warrant Czajka’s removal as prosecutor.
     “As the prohibition set forth in Judiciary Law Section 17 is absolute, analysis of these issues is neither required nor appropriate,” Egan wrote.
     Czajka told the Hudson Register-Star that he fought disqualification from the Fox case because it sets a precedent for as many as two dozen cases that he had previously handled as a judge.
     Czajka and Koweek reportedly believe that the Fox case represents the first time a former judge was disqualified from prosecuting as a DA since Section 17 was updated in 1945.
     Columbia County Assistant District Attorney H. Neal Conolly represented Czajka in the appeal. John Leonardson, a Columbia County conflict defender, argued for Fox, who was permitted to step in as a respondent in the case when Koweek chose not to appear.
     Columbia County’s conflict defenders take the place of public defenders who may have a conflict in a case.

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