LOCKPORT -- A special prosecutor is needed for the retrial of a man charged with two home invasions and an armed robbery, Niagara County Judge Sara Sheldon Farkas ruled Wednesday.
However, she refused a request from defendant Ryan S. Smith that she step down from the case, as well.
Court-appointed defense attorney Joseph Terranova successfully argued that the presence of attorney John Granchelli in the Niagara County District Attorney's Office creates a conflict of interest that forced that office off the case.
Granchelli, a recent addition to the prosecution staff, was a member of Smith's defense team in 2009. Although Granchelli didn't take part in courtroom work, he was an associate of defense counsel Patrick M. Balkin and had interviewed Smith, Terranova said.
One of the prosecutors in the August 2009 trial was Susan B. Bjornholm, who is now one of Farkas' confidential law clerks. That was the reason Terranova wanted Farkas to step down.
"That creates a conflict, certainly in the mind of my client," Terranova said. "We must be mindful of the appearance of impartiality."
Farkas said she has two law clerks, and she said a "China wall" will be erected to prevent Bjornholm from having any contact with Smith's case.
Farkas' other law clerk, Caroline A. Wojtaszek, also was a Niagara County prosecutor until 2010, but took no part in Smith's trial.
"I find nothing that prohibits me from trying this case again," Farkas said. "I know I can handle it in a fair way."
Smith, 24, of Niagara Falls, was granted a new trial when the Appellate Division of State Supreme Court ruled in March that Farkas erred in 2009 when she allowed the prosecution to use a DNA sample obtained from Smith after Niagara Falls police zapped him with a Taser electronic stun gun.
Smith was handcuffed and sitting on the floor of Police Headquarters when he was blasted with the 50,000-volt charge Sept. 29, 2008. He had refused to give a DNA sample from the inside of his cheek, because he already had given one the month before.
That sample had been spoiled by a lab error, but that apparently wasn't explained to Smith. Balkin also protested that Farkas signed an order to obtain the second sample without informing the defense.
A jury convicted Smith on 24 counts connected with crimes that occurred in 2006: two home invasions on July 27, one of which included the shooting of a man, and the robbery of a convenience storeon Christmas Eve. Farkas sentenced him to 45 years in prison.
Farkas said she would line up a special prosecutor as soon as possible. When the case was expected to be handled by Niagara County prosecutors, it had been slated for jury selection Oct. 29.
Terranova said he expects argument if the new prosecutor adopts the local prosecution's effort to obtain yet another DNA sample from Smith. Farkas had yet to rule on that.