Relin v. Celli — 134 A.D.2d 960

Majority

p. 960

In the Matter of Howard R. Relin, as District Attorney of Monroe County, Petitioner, v Andrew G. Celli, as Judge of the Monroe County Court, Respondent.

— Petition unanimously granted without costs and order appointing Special Prosecutor vacated. Memorandum: In this CPLR article 78 proceeding, the District Attorney of Monroe County, Howard Relin, seeks a judgment in the nature of prohibition to restrain enforcement of an order issued on May 15, 1987 by respondent, Monroe County Court Judge Andrew G. Celli. That order disqualified petitioner from prosecuting Michael Putnam, against whom charges were pending, on the ground that Putnam was a possible prosecution witness in another criminal case.

A District Attorney is not disqualified from prosecuting an indictment merely because the defendant may be a witness in an unrelated felony prosecution pending in the same office (People v Dixon, 115 AD2d 275 , lv denied 67 NY2d 650 ). Since there was no basis for the disqualification, the court exceeded

p. 961

its powers under section 701 of the County Law, and the remedy of prohibition is appropriate (Matter of Board of Supervisors v Aulisi, 62 AD2d 644 , affd 46 NY2d 731 ; Matter of Wilcox v Dwyer, 73 AD2d 1016 ; see also, Matter of Schumer v Holtzman, 60 NY2d 46 , 54). (Article 78.) Present — Denman, J. P., Green, Pine, Balio and Lawton, JJ.

Cases cited

Board of Supervisors v. Aulisi 62 AD2d 644 N.Y. App. Div. 1978-06-22 p. 961
Wilcox v. Dwyer 73 AD2d 1016 N.Y. App. Div. 1980-01-24 p. 961
Schumer v. Holtzman 60 NY2d 46 N.Y. 1983-09-15 at 54 p. 961