By Daniel Wiessner
ALBANY, N.Y., Nov 27 (Reuters) - A judge exceeded his
authority when he disqualified the Albany County prosecutor's
office from a prescription drug case after the defendants filed
a libel suit against District Attorney David Soares stemming
from the criminal case, the state's top court ruled Tuesday.
In a unanimous decision, the Court of Appeals found that
Albany County Judge Stephen Herrick erred in 2010 when he
removed Soares and his staff from the case, because the
defendants, who are the operators of a Florida pharmacy, had
failed to show that actual prejudice would have resulted from
allowing Soares to handle the prosecution.
The defendants sued Soares in 2010 after he compared their
allegedly lavish lifestyles to that of Tony Montana, the
power-hungry cocaine kingpin portrayed by Al Pacino in the film
"Scarface" during a news interview.
"Under our precedent, the existence of a conflict of
interest between the district attorney and a defendant, by
itself, does not warrant the removal of the district attorney,"
Judge Carmen Ciparick wrote for the court.
Ciparick was joined by Chief Judge Jonathan Lippman and
Judges Victoria Graffeo, Eugene Pigott, Susan Read and Robert
At the time Herrick disqualified Soares's office, the
prosecutors were on the verge of appealing an order that
dismissed previous indictments against the Florida defendants.
The decision allows Soares's office to pursue new indictments
against them. Soares has obtained more than a dozen convictions
of other defendants in the case.
In 2007, Soares said in a criminal prosecution in New York
that the pharmacy operators had a central role in an online
prescription drug distribution ring.
The defendants responded by bringing a federal civil lawsuit
against Soares in Florida, claiming he had harmed their business
by comparing them to Montana. (The 11th Circuit Court of Appeals
last year dismissed the federal claims but allowed claims to go
ahead under Florida law. A trial in that case is scheduled for
In 2010, Herrick granted the defendants' motion to
disqualify Soares from handling the drug distribution case,
citing a conflict of interest raised by the federal defamation
Soares filed an Article 78 petition seeking to vacate the
The Appellate Division, Third Department, last year sided
with Soares in a 3-2 ruling. The court said that upholding
Herrick's decision would create a "dangerous precedent" and
could encourage criminal defendants to delay prosecution by
filing civil lawsuits.
Around the same time, the Third Department admonished Soares
for the Tony Montana comments in a separate disciplinary
The state District Attorneys Association filed a brief in
the Article 78 proceeding on behalf of Soares, saying Herrick's
decision was "manifestly erroneous." The defendants argued on
appeal that there would be actual prejudice in allowing Soares
to take the case because the civil lawsuit and criminal case
Soares's office said, "We respect the appellate process and
are pleased with the decision of the court. We look forward to
proceeding with this criminal prosecution." It declined to
comment further, citing the pending criminal case.
James Knox, who represented the Florida defendants in the
Article 78 proceeding, did not return requests for comment.
The case is the Matter of P. David Soares v. Stephen
Herrick, New York State Court of Appeals No. 198.
For Soares: Albany County Assistant District Attorney
For the defendants: James Knox.
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