A judge on Friday named a special prosecutor to handle a misdemeanor assault case as a dispute deepened between her and Erie County’s top prosecutor over a specialized domestic violence court.
State Supreme Court Justice Deborah A. Haendiges appointed former prosecutor Louis A. Haremski to prosecute the case in her Integrated Domestic Violence Court.
Before Haremski’s appointment, District Attorney Frank A. Sedita III notified Haendiges’ court that he intended to seek an indictment from a grand jury against Michael Izzard, who is accused of breaking a woman’s jaw.
If the grand jury delivered an indictment, Sedita said he would prosecute the defendant in Haendiges’ court or any other court to which the case was assigned.
But Haendiges ruled that presenting the case to a grand jury would be unlawful - since the assault case was already transferred to her court - and she called Sedita’s intention “merely an illusory appearance” by the prosecution.
“Thus, this court further finds that the district attorney has elected to be unavailable, not in attendance and has absented himself from this case,” she said in her written decision.
Sedita told The News that he would probably appeal the judge’s order.
“I’m disappointed an Erie County grand jury - in other words, citizens of this county - will not have an opportunity to review the evidence to determine whether a crime has been committed, and if so, what level of crime it is,” Sedita said.
Sedita said the manner in which Haendiges appointed a special prosecutor is unlawful. He also has objected to how misdemeanor- and violation-level charges are transferred into the integrated court by the court’s staff.
Since Aug. 24, Sedita has stopped prosecuting misdemeanors and violations in Haendiges’ integrated court. He continues to prosecute felony domestic violence cases there and in other courts. Sedita wants violation- and misdemeanor-level domestic violence cases handled in local courts, not the integrated court.
But judicial administrators have said they want lower-level defendants prosecuted in the integrated court if they also have custody or matrimonial cases pending.
Both sides have met in recent months but have failed to resolve their dispute.
In the past week, the tone has turned testy in what has become a public dispute.
Sedita has called the integrated court costly and inefficient and prone to dismissals and acquittals.
Advocates of the court describe it as sensitive and coordinated for victims who also have custody or matrimonial cases pending, as well as better-suited than other courts to monitor offenders.
“Much of the rhetoric [Sedita] has been spouting is misleading, disingenuous and simply inaccurate,” said David Bookstaver, spokesman for the New York State Unified Court System.
In her decision Friday, Haendiges said putting the assault case before a grand jury “raises serious concerns by the court.”
“The alleged victim will be put through the unnecessary stress of appearing before the grand jury ... to testify, would require the defendant accused of the crime to make additional strategic decisions concerning the grand jury process and creates additional and unnecessary expense to the community for absolutely no purpose, given that the jurisdiction in this matter has already been divested to the Supreme Court [Integrated Domestic Violence Part].”
The domestic assault charge against Izzard has been looked upon as a test case in the dispute. The misdemeanor case is one of 11 that Sedita had refused to prosecute in Haendiges’ court since Aug. 24.
With a grand jury indictment, a special prosecutor would not be needed, Sedita said.
In the meantime, Sedita has said he has taken steps to make sure that no dangerous offenders slip through the cracks during his dispute with the integrated court.
His office scheduled the case against Izzard, for example, to be presented to the grand jury on Oct. 17, Sedita said, citing the seriousness of the allegations against him.
Sedita said he has instructed Rachel Newton, his domestic violence bureau chief, to put any other case before a grand jury if she believes the offender should be prosecuted.
Sedita has said removing the unindicted misdemeanor cases from the integrated court, and placing them in local courts, where his prosecutors are already trained in domestic violence prosecutions, would free up a prosecutor and allow him to increase staffing in his sex-crimes bureau.
Too many cases are transferred into the integrated court that are not viable prosecutions, but tie up his prosecutors, Sedita has said.
On Thursday, Haendiges gave Sedita a deadline of noon Friday to indicate whether he intended to prosecute Izzard or else a special prosecutor would be appointed to handle the case.
In his affidavit, Sedita noted that the accusation against Izzard in his Family Court case was similar to the misdemeanor charge and there are no matrimonial, custodial or visitation issues to resolve.
“I intend to exercise my prosecutorial discretion in this matter by seeking an indictment in this matter,” Sedita said in the affidavit he submitted to the court.
Sedita said Izzard’s lawyer and the integrated court were informed of his office’s intention to seek an indictment against Izzard before Thursday’s court appearance before Haendiges. Newton, he said, suggested to one of the integrated court’s attorneys that the case be adjourned until the grand jury had a chance to review the evidence.
Newton did not get a response before Thursday’s proceedings, Sedita said.