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Staten Island DA Recuses Himself More Than Any Other NYC Prosecutor

By  James Fanelli and Janon Fisher | January 20, 2015 7:30am 

 Staten Island District Attorney Daniel Donovan made the most requests for a special prosecutor out of all the city's district attorneys.
Staten Island District Attorney Daniel Donovan made the most requests for a special prosecutor out of all the city's district attorneys.
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DNAinfo/Nicholas Rizzi

NEW YORK CITY — Staten Island District Attorney Daniel Donovan punted cases to other local prosecutors far more often than any other city district attorney in the past two years — largely because he or his staff had personal ties to defendants.

In 2013 and 2014, city district attorneys made a total of 44 applications to judges requesting special prosecutors take over a criminal case because of a conflict of interest, according to records provided by the administrative office of the state’s court system.

Donovan, a Republican who recently announced his intention to run for the congressional seat vacated by Rep. Michael Grimm, filed 23 of the applications, records show.

Five were because the defendants were his longtime pals, campaign supporters or children of political donors, records show.

In a July 23, 2014, application, Donovan asked to be recused from prosecuting Robert Reiss, whom he described as an acquaintance who “has supported me both financially and otherwise in my prior electoral campaign.”

Reiss had been issued a desk appearance ticket two days earlier for filing a false police report, records show.

A judge approved the appointment of a special prosecutor from Brooklyn District Attorney Ken Thompson’s office to try the misdemeanor charge. However, the case was eventually dismissed.

Reiss is a secretary on the board of directors of Friends of Bahavat Yisrael, a pro-Zionist charity that raises contributions to buy land for Israeli settlers to “maintain Jewish sovereignty in Israel’s Galilee,” according to its website.

He declined to say how he knew Donovan, but said he was surprised that the district attorney asked for a special prosecutor because his case was so minor.

“He’s a very straight-shooter,” Reiss said of Donovan. “It wouldn’t have dawned on me to ask for a favor from him because he is such a straight-shooter.”

In a June 27, 2014, application, Donovan asked a state administrative judge to recuse him from the prosecution of Alfred Vitalone, saying he had been invited to the defendant’s wedding.

Vitalone had been charged with resisting arrest, obstructing government administration and disorderly conduct, records show.

The judge also granted a special prosecutor from Thompson’s office. Vitalone’s case is still ongoing and he declined to comment.

Donovan also requested nine recusals because the defendant was related to a member of his staff.

One case involved the cousin of the chief of the district attorney’s security detail. Another involved the son of Donovan’s deputy chief investigator, records show.

In another nine applications for recusals, Donovan frequently said there was a conflict of interest because either a staff member was the complainant, the victim or the witness in a criminal case being handled by his office.

In one application, he asked for a recusal from trying the case of a man whose mother was the sister of Anna Marie Scivetti, a Staten Island woman who vanished mysteriously in 1998.

Donovan said in the application that he has remained in “consistent contact” with the sister during the past decade as his office continued to investigate Scivetti's disappearance.

In another application, Donovan asked to be recused from prosecuting a Staten Island martial arts instructor who was accused of punching a friend in the eye. Donovan said the request was made because two of his staffers had children enrolled in his karate classes.

After an application for a special prosecutor is made, an administrative judge for the city will either approve or deny the request. If the application is approved, the judge will generally assign the case to a district attorney who falls under the same appellate court as the requestor.

The Staten Island and Brooklyn district attorneys generally serve as special prosecutors for each other’s offices. The Manhattan and Bronx DAs also generally act as a special prosecutor for each other.

Donovan’s counterparts in the other boroughs have made far fewer requests for special prosecutors to take over their criminal cases.

Former Brooklyn District Attorney Charles Hynes asked to be recused from 11 cases in 2013, his last year in office. Most of those requests were because his staff member was the defendant or the cases involved a relative of someone in his office.

Hynes’ successor, Ken Thompson, made four special prosecutor requests in 2014. One case involved Mansour Seye, a clerk in Thompson's office who was charged with harassment after pulling his wife’s breast out of her shirt in a Brooklyn Heights Five Guys. Seye agreed to an adjudication in contemplation of dismissal.

Bronx District Attorney Robert Johnson has made three special prosecutor requests in the past two years — two of which were because the defendants were members of his staff.

Queens District Attorney Richard Brown recused himself from prosecuting two cases in the past two years. One was because the complainant in a case was suing his office in a separate matter. The other was because the defendant was one of his assistant district attorneys.

Manhattan District Attorney Cyrus Vance Jr. only asked to be recused from one case in the past two years. In that case, the defendant was the brother of an assistant district attorney in his office.

Earlier this month, DNAinfo New York reported that in 2014 Vance also asked for a special prosecutor to investigate an allegation that a high-ranking member of his office had sexually assaulted a former intern.

In a statement to DNAinfo, Donovan said he always requests a special prosecutor when a case poses a potential conflict of interest to him or her staff.

“This is done out of an abundance of caution to prevent not only a clear conflict but even the appearance of impropriety,” he said.

Donovan added that once the request has been approved, his office has no further involvement.

When asked why his office had more recusal requests than any other district attorney, he said, “The 23 cases highlighted here represent an exceptionally small percentage of the 10,000 to 13,000 case filings a year that this office prosecutes.

"The number of requests submitted for a special prosecutor varies year to year, some years my office has made as few as six or seven requests.”

He declined to speculate on why other district attorneys made few requests.

Donovan, a former Manhattan assistant district attorney under Robert Morgenthau, has been the top prosecutor in Staten Island since 2004.

He gained national attention for his grand jury probe into the chokehold death of Eric Garner while in police custody. In the wake of the jury's decision not to indict NYPD Officer Daniel Pantaleo in Garner's death, some state politicians have called for legislation requiring a special prosecutor look into cases of alleged police brutality.

In his 10 years as district attorney, Donovan has gained a reputation for his honesty and integrity. But the scrupulousness has drawn the ire of residents, including from powerful member of his political party.

Donovan asked for a special prosecutor in 2007 when the grandson of James Molinaro, the ex-borough president of Staten Island, was arrested for an alleged probation violation. Donovan said there was a conflict of interest because he had served as Molinaro’s deputy borough president.

Ultimately, the case was assigned to the Manhattan District Attorney’s Office, and Molinaro’s grandson was sentenced to five years in prison for the probation violation.

Molinaro blamed Donovan for the stiff sentence and publicly excoriated him in a full-page ad in the Staten Island Advance, claiming his grandson was mistreated.

“Do the people of Staten Island have a say in the election of the Manhattan District Attorney? Or do they expect their prosecutor to prosecute his own cases?” Molinaro asked in the ad.

Daniel R. Alonso, ex-chief assistant for the Manhattan district attorney, said Donovan is making the right call if his recusals avoid potential conflicts of interest.

“If Donovan is recusing himself from matters involving people whom he has relationships with, that shows good ethics, not bad ethics,” he said.

Eugene O’Donnell, a former prosecutor and professor at the John Jay College of Criminal Justice, said there is a state law formalizing the reasons for a special prosecutor to avoid a conflict of interest. But district attorneys are also elected to office because voters believe they can handle tough cases, he said.

“The presumption should be that the elected DA is the prosecutor, he or she has been elected and should not duck an unpopular or disagreeable duty,” he said.