ALBANY – An appeals panel has barred an upstate district attorney from prosecuting a man whose case he had presided over in his former role as the county court judge.

“A defendant in a criminal case should not find himself…in the unenviable position of being prosecuted by the former judge who had earlier presided over the case,” Justice John Egan Jr. (See Profile) of the Appellate Division, Third Department, wrote for the unanimous panel in Czajka v. Koweek, 514623.

Egan said Judiciary Law §17 “establishes a bright-line disqualification rule” that prohibits Columbia County District Attorney Paul Czajka from prosecuting Nicholas Fox. He said the statute “could not be more clear and plainly operates to disqualify [a former judge]…from prosecuting that same matter in his new capacity as District Attorney of Columbia County.”

Czajka was the county court judge in 2010 when Fox was charged with a misdemeanor gun crime. He presided over the initial arraignment, a subsequent arraignment on a superceding indictment, a motion by the public defender’s office to disqualify itself and the unsealing of a search warrant, according to the decision.

In 2011, Czajka left the judicial position he had held for 16 years and successfully ran for the job he had before becoming a judge—district attorney. After taking office in 2012, he assumed responsibility for prosecuting the Fox case.

Fox then asked the current Columbia County Court judge, Richard Koweek, to disqualify Czajka and appoint a special district attorney. Koweek appointed Greene County District Attorney Terry Wilhelm as special prosecutor.

Czajka challenged his disqualification through a CPLR Article 78 proceeding and Fox challenged Czajka’s challenge, arguing the prosecutor lacks legal authority to commence an Article 78 against a judge.

In its decision yesterday, the Third Department upheld Czajka’s right to challenge Koweek’s order and said the case distills simply to whether Judiciary Law §17 permits the district attorney to handle the Fox case.

“In our view, he may not,” the panel said.

Egan acknowledged that the court has previously held that a district attorney, as a constitutional officer, “enjoys wide latitude and discretion to allocate and use both the staff and resources” of the office as he sees fit (see Matter of Soares v. Herrick, 88 AD3d 148 [2011]). But he said Czajka’s “status as a constitutional officer…does not render him immune from the Rules of Professional Conduct or, more to the point, Judiciary Law §17.”

Judiciary Law §17 says that a judge or former judge “shall not act as attorney or counselor in any action, claim, matter, motion or proceeding” that had been before him. The panel said that since the §17 prohibition is “absolute,” it need not consider whether “Fox has suffered, or may suffer, any actual prejudice or risk thereof” as a result of Czajka’s initial prosecution of the case.

Justices John Lahtinen (See Profile), Leslie Stein (See Profile) and Elizabeth Garry (See Profile) joined the opinion.

Assistant District Attorney H. Neal Conolly argued for Czajka. John Leonardson of Hudson argued for Fox.

Czajka said he disagrees with what he called a first impression ruling, and he is strongly considering a leave application to the Court of Appeals.

“It is an important issue to be resolved,” Czajka said, adding that while it is not uncommon for downstate judges to become district attorneys, it is rare and, except in his case, possibly unprecedented upstate. Two of New York City’s current district attorneys, Richard Brown in Queens and Robert Johnson, are former judges, as is Westchester County District Attorney Janet DiFiore.

The Columbia County district attorney said there are a handful of cases he had handled as a judge that remain open and shifting them to a special district attorney would create additional expenses for the county.

Czajka said the Fox case has been disposed of before Koweek for the same terms he had offered—probation.

Leonardson was not immediately available for comment.