MATTER OF DILLON v. KOWTNA

ADJUDGED that the petition is granted, without costs or disbursements, and the respondents are prohibited from enforcing the order dated February 4, 2000.

As a general rule, a court should remove a public prosecutor only to protect a defendant from actual prejudice arising from a demonstrated conflict of interest or a substantial risk of an abuse of confidence ( see, Matter of Schumer v. Holtzman, 60 N.Y.2d 46, 55). Here, the defendant in the pending criminal action, the respondent Michael Fortin, failed to offer relevant evidence in admissible form sufficient to substantiate his claim of a conflict of interest and thus, failed to meet his burden of establishing the likelihood of actual prejudice. Accordingly, in granting the motion to disqualify, Judge Kowtna acted in excess of his authority, and the petition must be granted ( see, LaRocca v. Lane, 37 N.Y.2d 575, 578-579, cert denied 424 U.S. 968; Matter of Schumer v. Holtzman, supra, at 51; Matter of Morgenthau v. Altman, 207 A.D.2d 685).

RITTER, J.P., SANTUCCI, S. MILLER, and KRAUSMAN, JJ., concur.