Judge: Rice wrong on special prosecutor

A judge Thursday ruled Nassau District Attorney Kathleen Rice can't choose the special prosecutor to probe the shuttered county police crime lab.

State Supreme Court Justice William Donnino said it's up to Gov. Andrew M. Cuomo - not Rice or the court - to appoint a prosecutor. Rice said she will now ask Cuomo to name an investigator to look into possible improprieties at the lab.

Facing calls from legal organizations and others for an independent investigation of the lab, Rice asked Donnino on Tuesday to approve Eric Dinallo, a former assistant state attorney general now in private practice to lead the probe.

But Donnino said in his decision that state law, not a county law on special prosecutors, should apply. The state Constitution and various statutes give the governor the power to supersede a district attorney in situations requiring open-ended investigations, he said.

Known and suspected foul-ups in lab analysis of evidence has raised questions over potentially thousands of drug and drunken-driving cases prosecuted by the DA's office dating back to 2007.

Donnino said a thorough investigation of the crime lab "appears necessary." He stressed the need to make sure no one in jail or facing criminal charges has been unfairly affected by mistakes at the lab.

Rice said last night in a prepared statement that she disagreed with Donnino's decision but will ask Cuomo to appoint a special prosecutor. Cuomo's office did not respond to requests for comment.

"We will continue to make sure this case receives the most fair and aggressive examination possible and this decision will not deter that effort," Rice said. "We are moving quickly to ask the governor to appoint a special prosecutor so we can begin the process of restoring the faith that the public deserves to have in its criminal justice system."

Donnino said the fact that Rice relied on evidence from the lab to prosecute cases did not bar her from investigating allegations of improper conduct.

But Rice has said a special prosecutor would help avoid any appearance of conflict that might occur if her office were to investigate the lab and the police officers who work there.

Garden City attorney Bruce Barket said, "I think she [Rice] deserves credit for recognizing a special prosecutor needs to be appointed, but should have left the selection of the individual to another office. the judge appropriately refused to rubber-stamp her choice."

Rice and County Executive Edward Mangano ordered the crime lab closed last Friday.

Until recently, the lab did work such as testing blood-alcohol content and narcotics. But a national accreditation group placed it on probation Dec. 3, citing 26 violations.

Since then, officials have revealed flawed drug testing at the lab and have said supervisors knew about the errors but didn't report them to officials outside the police department.

William Kephart, president of the Nassau County Criminal Courts Bar Association, said he agreed with Donnino's decision to turn down Rice.

"She moved under the county law and her application was misplaced," Kephart said. "The decision's right on the money."

Marc Gann, president of the Nassau County Bar Association, said he concurs.

"The most important thing is to get the proper individual appointed as soon as possible so that a full and thorough investigation can be conducted free of potential conflicts of interest, at the same time, ensuring that individual rights are protected," Gann said.

With Andrew Strickler