Morgenthau v. Altman

—Application pursuant to CPLR article 78 for a writ of prohibition is granted, and the order of Supreme Court, New York County (Herbert I. Altman, J.), entered on or about February 27, 1994, disqualifying the Assistant District Attorney from prosecuting the case, annulled, without costs.

The respondent IAS Court erred in granting respondent-defendant’s pre-trial motion to disqualify petitioner’s Assistant District Attorney. Contrary to the Court of Appeals’ holding in People v Paperno (54 NY2d 294, 296, 303), the motion was granted despite the absence of "a significant showing that the prosecutor’s prior investigative or prosecutorial conduct will be a material issue at the trial”, or, alternatively, any allegations that the prosecutor might seek to influence the jury by "injecting his own credibility into the trial”. In so doing, the IAS Court acted arbitrarily, exceeding its authority (see, La Rocca v Lane, 37 NY2d 575, 578-579, cert denied 424 US 968; Matter of Schumer v Holtzman, 60 NY2d 46, 51), warranting our grant of the writ. Concur—Sullivan, J. P., Carro, Wallach, Williams and Tom, JJ.