Defendant moves pursuant to County Law §701 for the appointment of a special district attorney on the ground that the complainant is the sister of a "high ranking deputy" in the office of the Kings County District Attorney.

The motion is denied.

In the "rare" case in which removal of an elected prosecutor is warranted (People v Keeton, 74 NY2d 903), it is necessary for a defendant to show actual prejudice and not the mere appearance of same (Schumer v Holtzman, 60 NY2d 46; People v Gigliuto, 22 AD3d 890). In this case, the defendant claims he is prejudiced because the complainant is related to a deputy bureau chief in another bureau of the prosecutor's office. In reply, the assigned assistant states that she is not supervised by the complainant's sister, and, in fact, has never met or spoken to her.

Based on this, no showing of actual prejudice has been made. There are hundreds of assistants in the district attorney's office. If removal of the office were required each time a complainant or defendant was related to one of them, the cost in time to the criminal justice [*2]system and money to the citizenry would be extensive. This is why appointments of special prosecutors require actual, palpable, factual prejudice and cannot be based on surmise or conjecture (see, e.g. People v Washington, 52 AD2d 984; People v Bonelli, 19 Misc 3d 1123 (a).

This constitutes the Decision and Order of the court.

____________________________

Matthew J. D'Emic

J.S.C.

February 14, 2011