A judge has refused to assign a special prosecutor to replace the Erie County District Attorney’s Office in handling a purse theft that victimized the mother of the DA’s No. 2 prosecutor.
State Supreme Court Justice Russell P. Buscaglia said a special prosecutor can be appointed when there is a showing of actual prejudice on the part of the district attorney or, in rare cases, when there is the appearance of impropriety in the DA prosecuting a case.
In this case, the judge said he found neither.
Defense attorney Mark Sacha had asked the judge for a special prosecutor because Sacha contends District Attorney Frank A. Sedita III has a conflict of interest in prosecuting his client, Antonio Mercado, in the purse theft.
Sacha says the conflict arises because the victim is the mother of Sedita’s No. 2 prosecutor, First Assistant District Attorney Michael J. Flaherty Jr., who Sacha says oversees the prosecutors in the case.
Sacha also says Sedita and Flaherty have political and financial ties.
Prosecutors told the judge earlier this week that Sedita assigned Assistant District Attorney Michael P. Felicetta to the case and told him to report to only him and to have no contact with Flaherty about it.
Buscaglia said Friday it was appropriate to insulate Flaherty from the case and that the appointment of Felicetta, who heads the DA’s Felony Trial Bureau, was a reasonable step to protect against any appearance of impropriety.
The judge told Sacha that if and when his client is indicted and the case is assigned to a judge for trial, he could renew his motion for a special prosecutor if he feels it is warranted.
He said Sacha also could then challenge his client’s arrest, which Sacha contends violated his constitutional rights.
Buscaglia expressed concern about the arrest but noted that prosecutors indicated the purse theft at 7 p.m. Sept. 23 near Elmwood and Lafayette avenues involved a possible robbery, a more serious violent felony.
Sacha said six investigators from the DA’s office in unmarked cars with lights flashing pulled over Mercado and his wife in a van she was driving at 11:30 a.m. Sept. 24 on the West Side. The van reportedly matched the getaway vehicle in the purse theft.
The investigators ordered the Mercados out of the vehicle at gunpoint, handcuffed them and took them to the DA’s office where they questioned them for eight hours about the purse theft before releasing Mrs. Mercado and charging him with possessing a stolen credit card that was taken earlier on Sept. 23 from an Amherst woman that was found in the van, Sacha said.
Mercado, 38, was charged with possessing stolen property. He waived a felony hearing in Buffalo City Court and was held for the grand jury.
Felicetta told Buscaglia that the grand jury is considering five felony charges against Mercado. They include two counts of second-degree robbery for allegedly taking Mrs. Flaherty’s purse by force and injuring her; two counts of criminal possession of stolen property for having the credit cards of Mrs. Flaherty and the Amherst woman; and one count of fourth-degree grand larceny for taking the Amherst woman’s credit card.