By Daniel Wiessner
ALBANY, N.Y., Jan 15 (Reuters) - The New York Court of
Appeals on Tuesday declined to hear a case challenging a
decision to assign a special prosecutor in a criminal case that
a district attorney presided over when he was a judge.
Columbia County District Attorney Paul Czajka had sought
leave to appeal a 2012 decision from the Appellate Division,
Third Department, appointing the Greene County district attorney
as special prosecutor in the misdemeanor case of Nicholas Fox.
The Court of Appeals on Tuesday declined to hear the case,
Fox in 2010 was charged with several misdemeanors, including
criminal possession of a weapon. Czajka, who was a county judge
at the time, presided over several aspects of the case,
including two arraignments, a motion by the public defender's
office to disqualify itself and the unsealing of a search
warrant, the Third Department said.
Czajka was elected district attorney that November. After he
assumed office, he took over the prosecution of Fox's case.
In May 2012, Columbia County Judge Richard Koweek granted
Fox's motion to disqualify Czajka and his staff and appointed
the Greene County district attorney as special prosecutor.
Czajka filed an Article 78 petition seeking to overturn
He argued that the unique role of a prosecutor trumped
Section 17 of the state Judiciary Law, which bars attorneys from
handling cases they presided over as judges.
Section 17 reads, "a former judge or surrogate shall not act
as attorney or counselor in any action, claim, matter, motion or
proceeding, which has been before him in his official
The Third Department disagreed and said he was disqualified
under the statute. "Had the legislature wished to carve out an
exception for district attorneys, it surely could have done so,"
Justice John Egan wrote for the court.
Fox's attorney, John Leonardson, declined to comment on the
Court of Appeals decision. Fox pleaded guilty last year to
fourth-degree criminal possession of a weapon.
H. Neal Conolly, who represented Czajka, did not return a
request for comment.
The case is the Matter of Paul Czajka v. Richard Koweek, New
York State Supreme Court, Appellate Division, Third Department,
For Czajka: H. Neal Conolly of McNamee, Lochner, Titus &
For Nicholas Fox: John Leonardson.
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