The People's motion for an order disqualifying Defendant's counsel and precluding use at trial of statements of prosecution witnesses taken by defense counsel or his associates is denied. Defendant's cross-motion for an order dismissing the accusatory instrument as facially defective, in the interests of justice, or on account of the People's failure to be ready for trial within the prescribed time, and suppressing statements he made to law enforcement officials in violation of the procedures enunciated in Miranda v. Arizona (384 US 436, 444 [1966]), is denied as noted below.

The People commenced this action in November 2005 by the filing of what is labeled an information that accuses Defendant of sexual abuse in the second degree (see Penal Law § 130.60[1]). By the factual part (see CPL 100.15[3]), the complainant (see CPL 100.15[1]), Detective Michelle M. Childs, attests that [*2]

"on 11/19/2005 and about 11:00 a.m. while at 16 W. Lincoln Place, Freeport, the defendant Rafael Quiroz did enter the bedroom of the mentally retarded 16 year old female and did expose his erect penis. Said defendant did take the victim's hand in his own and put the victim's hand on his erect penis and did masturbate himself to ejaculation with the victim's hand."

"The above is based on information and belief. The source of said information and the basis of the belief is the interview and statement of the victim and the interview and statement of admission of the defendant."

Although the information contains the statement "[s]upporting deposition of 16 year old female attached hereto and made a part hereof," no supporting deposition (see CPL 100.20) is attached to the accusatory instrument. Neither is Defendant's statement.

Defendant was arraigned on the criminal charge on November 23, 2005. He has throughout been represented by present counsel. According to the notations made by the clerk on the court file, Defendant has requested virtually all of the adjournments, although on some dates, no marking is made. Moreover, Defendant made a pretrial omnibus motion after the case was first marked for trial, which motion, pending for approximately two months, I decided by order May 25, 2006. By that order I, among other things, put Defendant's application for suppression of his written statement down for a hearing to determine whether it is the product of coercion, improper threats, or of custodial interrogation without benefit of Miranda warnings. Since then, according to the court file, the hearing and the case have been adjourned numerous times, either at Defendant's request, or on account of the present motion and cross-motion.

Three months after commencement of this action, in or about February, 2006, the Nassau County Department of Social Services commenced a neglect proceeding in the Nassau County Family Court (see Family Court Act Article 10) against the alleged victim's mother Defendant's sister apparently on account of the alleged conduct that gives rise to this action. Shortly thereafter, the County commenced a derivative proceeding against Defendant, who is thus a respondent in the Family Court. Defense counsel was his attorney of record in that court. The mother is represented in the Family Court by Connie Gonzales, Esq., who on this motion affirms she has represented the mother in the Family Court since on or about March 10, 2006. As is the ususal practice, the Family Court (Zimmerman, J.) appointed a law guardian, Steven Herman, Esq., to represent the person whom the Family Court terms "the child" — Defendant's niece — in the Family Court proceeding. It did so on or about March 10, 2006. According to the record presently before me, proceedings were held in Family Court on five [*3]dates between March 10, 2006 and September 20, 2006, and on each date, one of defense counsel's associates appeared, as did Mr. Herman and Ms. Gonzalez. The Family Court matter is apparently still pending.

By letter dated October 16, 2006 to Nassau County District Attorney Kathleen Rice, defense counsel expressed his view that the criminal charge against Defendant should be dismissed. To support that contention, he enclosed two affidavits, one he advised was made by the alleged victim, the other by the alleged victim's mother. Both were sworn to before defense counsel, who is also a notary, on October 12, 2006, when the alleged victim, Defendant's niece, was just under 18. By hers, the alleged victim recants her accusation. The mother, by hers, offers her view that the acts Defendant is accused of committing could not have occurred as she was with her daughter in their shared bedroom at the time the acts are alleged to have taken place. The record before me amply demonstrates that defense counsel had the consent of neither Mr. Herman before communicating with the alleged victim, nor that of Ms. Gonzalez before communicating with the alleged victim's mother. Sometime thereafter, Mr. Herman made application in the Family Court to disqualify defense counsel from representing Defendant in the Family Court on the ground that defense counsel met with and took the statement from the alleged victim, his client, without his permission and outside his presence in violation of DR7-104. He also sought to preclude use of the statement in the context of the Family Court proceeding. By order dated January 19, 2007, the Family Court (Zimmerman, J.) granted both prongs of the motion, ruling that defense counsel had violated the child's due process rights.

The People now move for virtually identical relief in this criminal action. In support, they urge that defense counsel's conduct is such an egregious violation of the Code of Professional Responsibility that he must be disqualified from representing Defendant in this criminal action as well,

"especially in light of [defense counsel's] attempted use of the product of these improper communications to seek a dismissal of the criminal matter. This motion is based on [defense counsel's] improper communications given the Family Court representation of the parties, and not on his having spoken with witnesses in a criminal case such as this."

The People point to DR 7-104, which prohibits an attorney from communicating "on the subject of the representation" with "a party" whom the attorney knows is represented by a lawyer "in that matter" unless the attorney has the prior consent of the lawyer representing the other party. They also point to the purpose of affording minors representation in the Family Court as a basis for disqualification [*4]in this action. Insofar as they seek an order precluding use of the statements taken by defense counsel, they urge that it would be contrary to the interests of justice to allow use of the "product of this improper conduct," although they do not concede that the statement purportedly made by the alleged victim was actually signed by her. In that regard, they point out the differences between the signature on the statement notarized by defense counsel, and that on a supporting deposition, a copy of which they submit on the motion and which they erroneously assume is attached to, and therefore a part of, the accusatory instrument.

In opposition, defense counsel submits a 30-page affirmation, devoted largely to setting forth his view of his own accomplishments, experience and reputation. By another almost-as-large portion, he launches an ad hominem attack on the Nassau County District Attorney. Insofar as he focuses on the substance of the People's motion, defense counsel urges, in effect, that because neither the alleged victim nor her mother is a "party" to this action, DR7-104 has no application; that, since the alleged victim is no longer under 18, she is no longer entitled to be represented by a law guardian, and therefore there is no violation; that, in any event, because it was his associates who appeared in Family Court, he personally was "not aware" that the alleged victim and her mother had counsel in the Family Court matter. He concludes that there was thus no intent to violate DR 7-104. And although he acknowledges that he notarized the two statements at issue, defense counsel also confusingly asserts that those statements were taken, not by him, but by one of his associates, even as he purports to know that neither the alleged victim nor her mother "made mention of the Family Court case" or that a law guardian "was representing [the alleged victim] there;" and that both of them reported they "had never been spoken to about the case by the prosecutors and both denied having or wanting counsel in this proceeding." He further asserts that both "came to my office unsolicited and voluntarily;" that they were informed "that I represent the Defendant and do not represent them or their interests;" that "[t]hey came to my office twice and the first time I declined to take statements from them;" that it was recommended that they confer with family members, advisors, and counsel, if any, before providing these statements;" and that they "then returned and gave statements to [my associate] who also cautioned them regarding a recantation or change in their statements. They received nothing from my office in the way of compensation or other emoluments." Defense counsel, who does not address that prong of The People's motion which is to preclude use of the statements that the defense obtained, but who does take issue with the People's position that the alleged victim is mentally impaired, submits another affidavit from her. By it, she again recants her accusation and expresses her wish that "these legal proceedings" be "over with." [*5]

With regard to the cross-motion, defense counsel specially addresses only that prong which is for dismissal on account of the People's claimed failure to be ready for trial within the statutorily prescribed period. In that regard, defense counsel offers "upon information and belief" only the bald conclusions that Defendant "has never asked for any adjournment to prepare for trial," that "there is no excludable time," and that, therefore, since this case has been pending for more than 90 days, dismissal pursuant to CPL 30.30(1)(b) is required. Defense counsel otherwise asserts, almost without context, that Defendant "is illiterate and speaks no English;" that statements attributed to him were taken in violation of the requirements of Miranda v. Arizona; and, cryptically, that Defendant "has moved to preclude use of those statements." Defense counsel expresses no recognition, however, that I have already made a ruling, noted above, on Defendant's prior application to suppress his statement. Apparently in conjunction with the noticed request for dismissal in the interests of justice, defense counsel posits that "there was no offense. It was entirely fabricated by the [alleged victim]," although he also posits that the "egregious misconduct" of violating Defendant's constitutional rights warrants dismissal or, "in the alternative," suppression of Defendant's statements. He makes no direct mention of his noticed application for dismissal of the accusatory instrument as facially defective. In fact, defense counsel makes but passing reference to the accusatory instrument, and then only in the context of his "disqualification" discussion, where he notes that the information "refers to a supporting deposition of a 16 year old female which the documents says is attached but was not."

In reply, The People, on notice, however obliquely, that the sufficiency of the accusatory instrument is at issue, have unilaterally determined that the cross-motion should be held in abeyance until their motion is decided and they thus decline to address the cross-motion's various prongs. They focus their reply on the disqualification issue as it pertains to this case, and in the process make passing reference to the need to have defense counsel appear as a witness "in order to determine the genuineness and circumstances of the purported recantations." By his reply, Defendant, among other things, requests that his applications to dismiss be granted as unopposed.

Were I to grant Defendant's application to dismiss the accusatory instrument as facially defective — an application that has merit — all other issues raised by the motion and cross-motion would be moot. Indeed, the present accusatory instrument, being, as it is, premised entirely on hearsay, is inadequate as an information (see CPL 100.15, 100.40[1]; People v Henderson, 92 NY2d 677, 685 NYS2d 409 [1999]). But a court need not dismiss a long form information, and may allow the People time to formally cure, if they demonstrate both an intention, and an ability, to do so (see People v. Casey, 95 NY2d 354, 717 NYS2d 88 [2000]; see also People v. Clinkscales, 3 Misc 3d 333, 774 NYS2d [*6]308 [Nassau Dist Ct, Feb.5, 2004]; People v. Cobb, 2 Misc 3d 237, 768 NYS2d 295 Crim Ct, Queens County, 2003, Zayas, J.]; People v. Romano, 188 Misc 2d 368, 728 NYS2d 868 [Crim Ct, Queens County, 2001, Modica, J.]). While I am not impressed, either with the People's cavalier disregard of their obligation to file a legally sufficient, trial-ready accusatory instrument, or their determination that they need not address such a basic, albeit barely raised, issue, they do on their motion, however inadvertently, present a supporting deposition that appears to cure the defect Defendant does not bother to directly address. Under the circumstances, including defense counsel's equally cavalier attitude about the issues he attempts to raise on the cross-motion, I deny that prong of the cross-motion which is for dismissal of the accusatory instrument as facially defective, with leave to renew on proper papers, including argument that actually focuses on that issue.

Insofar as Defendant seeks dismissal in the interests of justice, I do have discretion to grant that relief, but that discretion is to be exercised sparingly, after careful consideration and analysis of the relevant, statutorily enumerated factors (see People v. Rickert, 58 NY2d 122, 459 NYS2d 734 [1983]; People v. Calderon, 287 AD2d 729, 732 NYS2d 136 [2d Dept. 2001]; and see CPL 170.40). Such a dismissal is not a vehicle for acquittal by motion (cf. CPL 170.30; cf. People v. Rickert, supra ; and see People v. Prunty, 101 Misc 2d 163, 420 NYS2d 703 [Crim Ct, Queens County, 1979, Galfunt, J.]), and it is a defendant's burden to demonstrate that some compelling reason exists which warrants the dismissal (People v. Shlessel, 104 AD2d 501, 470 NYS2d 249 [1st Dept. 1984]). Defendant here barely pays lip service to the relevant factors and he thus presents no basis for granting this extraordinary relief. His request therefor is accordingly denied.

Insofar as Defendant seeks dismissal on account of the People's claimed failure to be ready for trial within 90 days of commencement of this action, it is well-settled that any adjournments, regardless of the reason for them, that are granted at the defendant's request or with his or her consent, as well as reasonable periods of delay resulting from other proceedings involving the defendant, including pre-trial motions, are excluded from the 90-day calculation (see CPL 30.30[4][a], [b]). This is so even where the accusatory instrument is not a sufficient, trial-ready document (People v. Meierdiercks, 68 NY2d 613, 505 NYS2d 51 [1986]; People v. Worley, 66 NY2d 523, 498 NYS2d 116 [1985]). But while the notations on the court file are not dispositive (People v. Berkowitz, 50 NY2d 333, 428 NYS2d 927 [1980]), Defendant's conclusory and patently erroneous "upon information and belief" assertion that none of the time this action has been pending is excludable is not sufficient to warrant dismissal pursuant to CPL 30.30(1)(b), even though the cross-motion is, in effect, unopposed (cf. id.; see also People v. Quiles, 179 Misc 2d 59, 683 NYS2d 775 [CrimCt, New York [*7]County, 1998, Billings, J.]).

Insofar as Defendant seeks suppression of his statement, the application is denied as unnecessary. As noted above, I have already ruled on his prior application for identical relief.

Turning, finally, to the People's disqualification motion, the right to counsel of one's own choosing in a criminal case is a fundamental constitutional right that is not to be interfered with unless some competing matter of public policy so dictates (see People v. Ortiz, 76 NY2d 652, 656, 563 NYS2d 20, 23 [1990]; Matter of Abrams, 62 NY2d 183,196, 476 NYS2d 494, 196 [1984]). Ethical violations are often the basis for disqualification motions, but, while the courts are always concerned with the integrity of the judicial system and the preservation of ethical standards (see Matter of Abrams, supra ), the disciplining of attorneys who engage in misconduct is not of direct concern when ruling on such motions (cf. 22 NYCRR Part 691; see People v. Ortiz, supra ). It is instead the court's function to exercise sound discretion in the context of the litigation then before it and to determine whether an act of professional misconduct, e.g., violates the rights of a party or otherwise infects the integrity of the proceedings before it so as to warrant the drastic relief of disqualification (cf. People v. Ortiz, supra ; Matter of Abrams, supra ; Carey v. Carey, 13 AD3d 1011, 788 NYS2d 210 [3d Dept. 2004]; Campolongo v. Campolongo,2 AD3d 476, 768 NYS2d 48 98 [2d Dept. 2003]). I conclude that the differences between the Family Court proceeding and this criminal action warrant a difference in the outcome of the motion before me.

The purpose of a criminal prosecution is to correctly determine whether a defendant has committed a wrongful act, and if so, to assess blame and impose punishment (People v. Roselle, 84 NY2d 350, 618 NYS2d 753 [1994]; People v. Howard, 152 AD2d 325, 329, 548 NYS2d 785, 788 [2d Dept. 1989]). Any reasonable doubt about a criminal defendant's guilt requires acquittal, and "zealous representation of a defendant in a criminal case is [thus] a matter of constitutional dimension, which warrants giving a criminal defense lawyer the broadest possible range of pre-trial investigation" (Matter of Chan, 271 F Supp 2d 539 [SDNY, 2003, McMahon, J.]). In contrast, the purpose of what is essentially a civil proceeding under Article 10 of the Family Court Act is "to protect children from injury and to help safeguard their physical, mental and emotional well-being" (see Family Court Act § 1011; see also People v. Smith, 62 NY2d 306, 476 NYS2d 797 [1984]; People v. Roselle, supra ). The real subject of a neglect petition is not the respondent against whom it is brought, but the child it concerns, and "the orientation of Family Court is rehabilitative, directed at protecting the vulnerable child" (People v. Roselle, supra at 356, 618 NYS2d at 755).

Like the Family Court, I am unpersuaded by defense counsel's assertions that he did not know that the alleged victim and her mother were represented by counsel. Given his experience, he certainly should have known of the [*8]representation, and neither he nor his associates should have communicated, either with the alleged victim, or her mother, without the consent of their respective attorneys (see Carey v. Carey, supra ; Campolongo v. Campolongo, supra ). But the People point to no conduct on the part of defense counsel in the context of this litigation that warrants interfering with Defendant's fundamental constitutional right to counsel of his own choosing. Indeed, it appears that they seek to have defense counsel punished here because of factors pertinent to the Family Court proceeding. But while the alleged victim whose rights defense counsel violated is the very focus of the Family Court proceeding, the considerations that are the underpinning of the Family Court's ruling on the disqualification motion before it simply do not pertain here. Neither the alleged victim nor her mother is a "a party" to the criminal action (see Matter of Chan, supra ), and I am aware of no public policy or other consideration pertinent to this action that warrants interfering with Defendant's fundamental, albeit not absolute, right to counsel of his own choosing (Matter of Abrams, supra ). I therefore decline to disqualify defense counsel on account of his violation of Code of Professional Responsibility DR 7-104.

I also decline to preclude use at trial of the statements defense counsel obtained from the alleged victim and her mother. Apart from the fact that such a spector implicates the constitutional right to confront the People's witnesses with prior inconsistent statements (see Crawford v. Washington, 541 US 36 [2004]), in New York, exclusion of a statement is not an appropriate remedy for the misconduct about which the People complain (see People v. Rice, 30 AD3d 172, 815 NYS2d 563 [2d Dept. 2006]; Haimanson v. Farkas, 292 AD2d 421, 738 NYS2d 894 [2d Dept. 2002]; Stagg v. New York City Health and Hospitals Corp., 162 AD2d 595, 556 NYS2d 779 [2d Dept. 1990]).

To the extent that the People, by way of reply, purport to seek disqualification on the ground that defense counsel will be a witness at trial, that undeveloped ground is, at best, premature (see Code of Professional Responsibility DR 5-102).

So Ordered.