People v. Shinkle ( 1979 )

Kane and Mikoll, JJ.,

dissent and vote to reverse in the following memorandum by Kane, J. Kane J. (dissenting). We are in accord with the statement of the majority that this record contains overwhelming proof of defendant’s guilt beyond a reasonable doubt. Nevertheless, the serious ethical questions developed in the course of these proceedings are so pervasive that we conclude a reversal is mandated. Lepold’s contacts with the defendant were significant and extensive. Before his appointment as Chief Assistant District Attorney, he had worked closely with defendant’s trial counsel while serving as the Executive Director and Attorney-in-Chief of the Sullivan County Legal Aid Society. He interviewed the defendant a number of times over a nine-month period, acquired an intimate knowledge of all the facts, and was most instrumental in the preparation of defendant’s insanity defense. We cannot subscribe to the view that the burden of showing any prejudice rests with the defendant. Just how he would go about demonstrating actual prejudice escapes us. Moreover, even if the measures adopted by the prosecution to insulate itself from Leopold’s prior involvement were of proven effectiveness in practice, defendant is entitled to a new trial. The ethical considerations and the appropriate requirements for the resolution of conflicting interests are ably set forth in the dissenting opinion of Mr. Justice Hopkins in People v De Freese (71 AD2d 689). We find them to be compelling and believe that they should control the outcome of this similar case. Accordingly, we would reverse as a matter of law and grant a new trial with a Special Prosecutor.