Ethics Bulletin 3rd Quarter 2017 (October 4, 2017)

Professional Conduct Resources

Brady/Giglio/Rosario & Other Discovery Issues

Second Department

People v Maxwell, 2017 NY Slip Op 05622 (7/12/17) – Trial court properly denied (following a hearing) that branch of defendant’s CPL 440.10 motion that sought vacatur of his murder conviction on the ground of an alleged Brady violation, to wit, the People failed to turn over a number of DVDs of security camera footage. “The evidence elicited at the hearing established that the prosecution provided the defendant with, or permitted him to review prior to trial, copies of eight DVDs, and the defendant failed to demonstrate that the prosecution was ever in possession of any additional DVDs of security camera footage [see People v Broxton, 34 AD3d 491, 492 (2d Dept 2006)].”

People v Grant, 2017 NY Slip Op 05844 (7/26/17) – “The defendant contends that the Supreme Court improperly denied his request to listen to the recordings of telephone calls he made from Rikers Island before transcripts of the recordings were used to impeach his testimony on cross-examination. Contrary to the defendant’s contention, the defense was not entitled to the prosecution’s impeachment material until after it was used to impeach the defendant on cross-examination [see People v Lindsay, 131 AD3d 625, 626 (2d Dept 2015); People v Parchment, 92 AD3d 699, 700 (2d Dept 2012); People v Gladden, 72 AD2d 568, 569 (2d Dept 1979)].”

People v Tsintzelis, 2017 NY Slip Op 05980 (8/2/17) – “Contrary to the defendant’s contention, the Supreme Court providently exercised its discretion in denying his discovery request pursuant to CPL 240.40 for material that was not in the possession or control of the People [see People v Beckham, 142 AD3d 556 (2d Dept 2016); People v Robinson, 53 AD3d 63 (2d Dept 2008); People v Stern, 270 AD2d 118(1st Dept 2000)].”

People v Ulett, 2017 NY Slip Op 06386 (8/30/17) – Affirmed the trial court’s denial, following a hearing, of Ulett’s CPL 440.10 motion to vacate his murder conviction on the ground “that the People failed to disclose a surveillance video of the lobby of the building outside of which the crime occurred.” “Here, the defendant failed to show a reasonable probability that the result would have been different had the video been disclosed prior to trial, particularly in light of the very limited view provided in the video of the events occurring outside the building. Further, any impeachment value provided by the video was minimal, as was the likelihood that the video would have led to additional exculpatory or impeaching evidence. Accordingly, the Supreme Court properly denied the defendant’s motion.”

Third Department

People v Cruz, 2017 NY Slip Op 05476 (7/6/17) – “Defendant’s assertion that the People withheld a recording of a police interview with a man accompanying him at the time of the incident finds no ‘support in the record, and his speculation that such evidence exists is insufficient to establish a Brady violation’ [People v Chaplin, 134 AD3d 1148, 1152 (3rd Dept 2015); People v Parkinson, 268 AD2d 792, 793 (3rd Dept 2000)].”

People v Mangarillo, 2017 NY Slip Op 05872 (7/27/17) – Affirmed County Court’s denial, following a hearing, of defendant’s CPL § 440.10 motion, which initially rested on the claim that the People had withheld the out-of-state sheriff’s investigative report describing accounts relayed from camp director: after confiding in several of her camp friends that her grandfather had subjected her to particular sexual acts, defendant’s granddaughter asked them not to tell anyone, that she’d been joking. “To establish a Brady violation, a defendant must show that (1) the evidence is favorable to the defendant because it is either exculpatory or impeaching in nature; (2) the evidence was suppressed by the prosecution; and (3) prejudice arose because the suppressed evidence was material” [quoting People v Fuentes, 12 NY3d 259, 263 (2009)].

“County Court correctly concluded that, while the statement had impeachment value, defendant failed to demonstrate that it was suppressed by the People or that he was prejudiced thereby. The [ADA assigned to the case] testified that, during plea negotiations, she played [for defendant’s attorney] a video of the [police] interview of the victim recounting the sexual abuse[;] she also provided counsel with the medical report and search warrant application to review, and the materials attached to the warrant application included the report in issue containing the Brady remarks. * * * Defense counsel testified that he did not recall being provided with this report when he viewed the video and did not believe that he had ever seen it, but acknowledged that it was possible. We defer to County Court’s determination to credit the testimony of both ADAs, which established that the People provided the material and did not suppress it [see People v Seeber, 94 AD3d 1335, 1336 (3rd Dept 2012); People v Feerick, 7 AD3d 267, 268 (1st Dept 2004); see also People v Garrett, 23 NY3d 878, 886-887 (2014).

As for the third, prejudice prong,

“While the statement could potentially have been used to discredit the victim, it is significant that it constitutes multiple hearsay, that an abuse victim’s fear of the consequences following disclosure could have been readily explained, and that the victim provided detailed accounts to police of the sexual abuse — deemed highly credible by the People and defense counsel — which defendant admitted during the plea allocution. Also, the search of defendant’s residence uncovered a specific instrument used in the abuse that the victim had described to police.”
At the 440 hearing, defense counsel characterized the interview video as “disturbing and compelling;” he also testified, inter alia, that he “strongly recommended” that defendant accept what counsel considered a “very good” plea offer, which would be withdrawn once the case was presented to the Grand Jury. The Third Department also noted, “recantation evidence is viewed as an extremely unreliable form of evidence” [internal punctuation and citations omitted].

“Given the foregoing and that defendant was aware that he faced potential life sentencing on class A-II felonies and other charges if he were indicted…, and that County Court found ‘incredible’ [defendant’s hearing testimony] that he lied during the plea proceedings and probation interview and would not have accepted the plea deal had he known of this fleeting statement, we agree with the court’s conclusion that there was no reasonable probability that defendant would not have pleaded guilty had the statement been disclosed to him [citations omitted].”

Note: There is a split amongst the Departments as to whether a guilty plea forecloses consideration of a post-judgment Brady claim. Compare, e.g., People v Leach, 15 AD3d 677, 679 (2d Dept 2014) (“By pleading guilty, the defendant forfeited his right to seek review of any alleged Brady violation [citations omitted]”) with People v Ortiz, 127 AD2d 305. 308 (3rd Dept 1987) (“a claim of a violation of Brady rights should not be deemed waived [sic] by a guilty plea”).

Grand Jury

First Department

People v Allen, 152 AD3d 401 (8/30/17) – In this two defendant case, the People re-presented both cases to the Grand Jury. In one instance, they re-presented without first obtaining leave from the court, in violation of CPL 190.75(3). In the other instance, they sought and obtained leave while the re-presentment was still in progress, at a time when the safeguards of CPL 190.75(3) could still be implemented. The Court reversed and remanded the first instance for a new trial, and affirmed in the second instance, finding that the defendant was not prejudice in that case.

Voir Dire

First Department

People v Whitefield, 2017 NY Slip Op 06618 (9/26/17) – Reversed and remanded for a new trial. Trial court should have granted defendant’s challenge for cause to a prospective juror, “a police officer who stated on voir dire that he believed that the testimony of police witnesses would be accurate, except insofar as they were relaying inaccurate information provided by a victim or other witness.” That comment, as well as others he made when pressed by defense counsel, “showed a predisposition to believe that police officers testify truthfully” and viewed as a whole, his responses did not expressly state that his prior state of mind would not influence his verdict.

Second Department

People v Brown, 2017 NY Slip Op 06289 (8/23/17) – Conviction reversed and new trial ordered because the Second Department concluded that the trial court should not have upheld the prosecutor’s peremptory challenges to 2 prospective black jurors; the race-neutral explanation for challenging those 2 jurors — “that those potential jurors had failed to give satisfactory responses to certain hypothetical questions posed during voir dire” — was pretextual.

“[T]he record demonstrates that the race-neutral reasons for challenging prospective jurors Nos. 2 and 8 were not applied equally to exclude other prospective jurors who were not black, even though those other jurors had answered the subject hypothetical questions in the same way that prospective jurors Nos. 2 and 8 had answered. Although the uneven application of race-neutral factors does not always indicate pretext where the prosecution can articulate other legitimate reasons to justify the uneven use of its challenges [see People v Allen, 86 NY2d 101, 110 (1995)], the prosecution here failed to do so. Under the circumstances, we conclude that the nonracial bases advanced by the prosecutor for challenging prospective jurors Nos. 2 and 8 were pretextual [citing, inter alia, People v Fabregas, 130 AD3d 939, 942 (2d Dept 2015)]. Accordingly, the defendant is entitled to a new trial [citation omitted].”

Fourth Department

People v Craig Davis2017 NY Slip Op 06790 (9/29/2017) – The case was held and remitted for reconsideration of the court’s denial of defendant’s Batson application after the prosecution exercised a peremptory challenge. The Appellate Division with defendant that he met his initial burden on his Batson application by demonstrating that the prosecution exercised a peremptory challenge to remove a member of a cognizable racial group from the venire, and that there existed facts and other relevant circumstances sufficient to raise an inference that the prosecution used its peremptory challenge to exclude that potential juror because of her race” Defendant is African–American, and the first prospective juror to be peremptorily challenged by the People was the only African–American on the panel. Neither the People nor defendant asked any questions of the prospective juror at issue during voir dire, and County Court’s general questioning of the panel raised no issues that would distinguish her from the other prospective jurors. Inasmuch as there was a basis in the record to infer that the People exercised the peremptory challenge in a discriminatory manner, the burden shifted to the People to articulate a nondiscriminatory reason for striking the juror, and the court then should have determined whether the proffered reason was pretextual. Therefore the Appellate Division held the case, reserved decision, and remitted the matter to County Court for that purpose.


Second Department

People v Elder, 2017 NY Slip Op 05840 (7/26/17) – “Although the prosecutor … improperly suggested in his opening statement that the indictment constituted evidence of the defendant’s guilt [see People v Liverpool, 35 AD3d 506, 506 (2d Dept 2006); People v Logan, 221 AD2d 662, 663 (2d Dept 1995)]”, defendant was not denied a fair trial; the trial court’s remedial instruction sufficiently addressed the misstep.


First Department

People v Gillard, 151 AD3d 622 (6/22/17) – Holding that the trial court properly exercised its discretion in denying defendant’s mistrial motion, the court pointed out that there was no indication that the prosecutor intentionally elicited the victim’s testimony regarding evidence that had been suppressed, or acted in bad faith.

Second Department

People v Grasing, 2017 NY Slip Op 05845 (7/26/17) – Yes, “[t]estimony about victims’ personal backgrounds that is immaterial to any issue at trial should be excluded.” People v Harris, 98 NY2d 452, 490-491 (2002); see also, People v Holiday, 142 AD3d 625 (2d Dept 2016). But to the extent the prosecutor elicited testimony from the mother of the vehicular homicide victim “which was irrelevant to the sequence of events, any error was harmless as there was overwhelming evidence of the defendant’s guilt and no significant probability that the error contributed to his convictions [citations omitted].”

“Similarly, although the County Court erred in allowing police officers to testify about remarks made to them by a witness to the incident, who was unavailable to testify at trial [see People v Johnson, 1 NY3d 302, 306 (2003)], such error was harmless.”

The Second Department agreed with the defendants in People v Vazquez, 2017 NY Slip Op 06092(8/9/17), and People v Burkette, 2017 NY Slip Op 06082 (8/9/17), that the trial court should not have permitted the People to make use of “a summary chart depicting the gang hierarchy and membership of the gang, which identified the gang’s members by name and their associated arrest photos [see People v Shields, 100 AD3d 549, 550-551 (1st Dept 2012); People v Thomas, 226 AD2d 1071, 1072 (4th Dept 1996)].” But the error was deemed harmless in each case: the proof of these defendants’ guilt was overwhelming, and “there is no significant probability that, but for the errors, the verdict would have been less adverse [citations omitted].”

People v Narine, 2017 NY Slip Op 06460 (9/13/17) – The trial court should not have permitted the prosecutor “to display the injured child to the jury during the mother’s testimony, since the extent of the child’s long-term injuries was not an element of the crime [see Penal Law § 260.10[1]; People v Johnson, 95 NY2d 368, 371 (2000); People v Simmons, 92 NY2d 829, 830 (1998)], and such display only served to prejudice the defense by arousing the emotions of the jury [see generally People v Wood, 79 NY2d 958, 960 (1992); People v Stevens, 76 NY2d 833, 835 (1990)]. Nevertheless, the error was harmless [see People v Crimmins, 36 NY2d 230, 241-242 (1975)]. Given the extensive and uncontroverted medical evidence supporting the diagnosis of shaken baby syndrome and that the child’s injuries could have only occurred when the child was with the defendant, the evidence of the defendant’s guilt was overwhelming. Moreover, there is no significant probability that the jury would have acquitted the defendant had it not been for the error [citation omitted].”

Fourth Department

People v Eaves2017 NY Slip Op 05550 (7/7/2017) – There was no error in denying defendant’s motion for mistrial based on an improper question by the prosecutor to a witness on redirect. After the witness was asked on cross-examination about the details of his past conviction for armed robbery by defense counsel, the prosecutor asked on redirect examination if that robbery, like the one at issue herein, involved the shooting of a victim. The court sustained defense counsel’s objection. That one instance of prosecutorial misconduct was not so egregious as to deprive defendant of a fair trial and, thus, reversal was not warranted.

People v Ronald J. Larkins2017 NY Slip Op 06752 (9/29/2017) – In this robbery trial, two New York State Thruway toll collectors testified that they heard a police bulletin concerning defendant’s car. The People asked a Trooper during redirect a question indicating that the bulletin the toll collectors described concerned an incident in a different county from the county in which the presently charged incident took place. There was no prejudice from the mention of the name of the county from which the bulletin emanated and even if that was some prejudice, it was minimal.


Second Department

People v Stricklin, 2017 NY Slip Op 05469 (7/5/17) – The trial court “properly permitted the prosecutor to enter one of the defendant’s prior convictions” — excluded by its earlier Sandoval ruling — “into evidence for the limited purpose of determining whether that conviction affected the defense expert’s opinion. The evidence contradicted the defendant’s self-reported legal history, upon which the expert partly relied in formulating his opinion (see People v Fardan, 82 NY2d 638, 645-647). To the extent the defendant argues that the prosecutor’s questioning of the defense expert went beyond the bounds of the Sandoval ruling, the defendant failed to preserve his contention for appellate review by raising a specific objection to that effect before the court, and, in any event, any error resulting from that questioning was harmless [citations omitted].”

People v Rivera, 2017 NY Slip 05624 (7/12/17) – Rejected defendant’s claim that he was denied due process when the suppression hearing court allowed the prosecutor to cross-examine a defense witness regarding matters beyond the scope of defense attorney’s direct examination. “The matters addressed during this part of the cross-examination were irrelevant to the identification issue that was the subject of the hearing, and no due process violation occurred.”

People v Chinloy, 2017 NY Slip Op 06450 (9/14/17) – “The Supreme Court erred in allowing the prosecutor to cross-examine a defense witness regarding her possible gang affiliations since there was no connection between gang membership and the alleged crime [see People v Acevedo, 84 AD3d 1390, 1391 (2d Dept 2011)]. It was also improper to allow the prosecutor to introduce extrinsic evidence to impeach that witness’s credibility when she denied being affiliated with a gang [see People v Schwartzman, 24 NY2d 241, 244, cert denied 396 US 846 (1969); People v Scruggs, 111 AD3d 966, 967 (2d Dept 2013)]. However, because there was overwhelming evidence of the defendant’s guilt and no significant probability that these errors contributed to the defendant’s convictions, the errors were harmless [citation omitted].”

Fourth Department

People v Ronald J. Larkins2017 NY Slip Op 06752 (9/29/2017) – Defendant failed to preserve for review his contention that the prosecutor committed misconduct during cross-examination by making an improper comment. Counsel failed to request any further relief after the court sustained his objection to the comment.


Second Department

People v Gurdon, 2017 NY Slip Op 06660 (9/27/17) – The Second Department declined to order a new trial of the child sex abuse charges on the ground that the prosecutor’s summation had denied Gurdon a fair trial.

“It is ‘the right of counsel during summation to comment upon every pertinent matter of fact bearing upon the questions the jury have to decide’ [People v Ashwal, 39 NY2d 105, 109 (1976)]. Comments made by a prosecutor in summation are proper if they constitute a fair response to arguments raised by the defense [see, e.g., People v Galloway, 54 NY2d 396, 399 (1981); People v Lugg, 124 AD3d 679, 680 (2d Dept 2015)]. Further, ‘a prosecutor may engage in fair comment on the evidence and the inferences to be drawn therefrom’ [People v Jones, 294 AD2d 517 (2d Dept 2002); see also People v Brown, 139 AD3d 964, 966 (2d Dept 2016)]. However, in summation, the prosecutor must stay within the four corners of the evidence and avoid irrelevant and inflammatory comments that have a tendency to prejudice the jury against the accused [see People v Singh, 128 AD3d 860, 863 (2d Dept 2015)].
Here, the prosecutor’s comment that the complainant should be believed because she had been interviewed by law enforcement authorities and testified before the grand jury, and because ‘she has never wavered,’ was a fair response to the defense counsel’s argument that the complainant’s account was not plausible, and may have involved “implanted memories.” The prosecutor’s statement that the complainant had no motive to lie was a fair response to the defense counsel’s argument in summation that “any little thing could set a kid off” based upon small or big grievances [citations omitted]. The prosecutor’s argument that there was no evidence of any reason for the prosecution witnesses to lie was improper (Singh, 128 AD3d at 863), but under the circumstances of this case, it did not deprive the defendant of a fair trial. Similarly, the prosecutor’s comments that the complainant would forever associate the end of her mother’s pregnancy with the defendant’s sexual abuse were designed to appeal to the jury’s sympathy and were, therefore, improper [see People v Casiano, 148 AD3d 1044, 1045 (2d Dept 2017); People v Redd, 141 AD3d 546, 550 (2d Dept 2016); Singh, 128 AD3d at 864], but did not deprive the defendant of a fair trial. Moreover, under the circumstances of this case, the cumulative effect of the errors noted above did not deprive the defendant of a fair trial.”

Fourth Department

People v Ronald J. Larkins2017 NY Slip Op 06752 (9/29/2017) – Defendant failed to preserve for review his contention that the prosecutor committed misconduct during summation. He made only an untimely specific objection after the prosecutor’s summation ended.

People v Talarico Young, 2017 NY Slip Op 06779 (9/29/2017) – A comment by the prosecutor during summation constituted impermissible burden-shifting. The court, however, instructed the jury after defendant’s objection that defendant did not have the burden of proof, and that instruction alleviated any prejudice to defendant. The Court further agreed with defendant that the prosecutor improperly denigrated the defense and defense counsel during summation. Thus, the prosecutor engaged in two instances of misconduct, one of which was addressed by the court’s instruction of the jury, but the Court concluded that such misconduct was not so pervasive or egregious as to deny defendant a fair trial.

People v Donald J. Aikey2017 NY Slip Op 06766 (9/29/2017) – Defendant was not denied a fair trial by the prosecutor’s comments with respect to defendant’s failure to present a witness. The comment did not constitute an impermissible effort to shirt the burden of proof inasmuch as defendant elected to present a defense.

Conflict of Interest-Appearance of Impropriety

Fourth Department

People v Zachary J. Barrett2017 NY Slip Op 06764 (9/29/2017) – The court properly denied defendant’s motion to withdraw his plea without conducting a hearing. Defendant claimed that the prosecutor had a conflict of interest. Defendant was afforded a reasonable opportunity to present his contentions, and the court made an informed determination in denying the motion on the merits. The record established that the prosecutor briefly represented defendant in an unrelated criminal matter several years before the instant action, and there was no indication of actual prejudice arising from a demonstrated conflict of interest or a substantial risk of an abuse of confidence.


Fourth Department

People v Louis V. Vullo, NY Slip Op 06789 (9/29/2017) – After rejecting the defendant’s challenge to the sufficiency of the trial evidence supporting his third-degree robbery conviction, the court noted that a District Attorney is obligated to file a brief in opposition to an appeal unless he concedes that the judgment on appeal should be reversed. Here he did neither; nor did he notify the Court of his election not to submit a brief (see 22 NYCRR 1000.2[d] ). This duty is in no way diminished or excused by reason of the fact that the Appellate Division affirms the conviction after a careful consideration of the record and law.

Other News

New York

Swatch Suit Offers Teachable Moment in Steering Clear of Ethics Pitfall

This New York Law Journal article discusses the impact of an attorney’s decision that factual discrepancies in an affidavit of a key witness were immaterial and did not require alerting the court. The judge is now considering Rule 11 and other possible sanctions.

Around the U.S.


Debunking claims of prosecutorial misconduct

The Orange County, California, District Attorney’s Office debunks a recent Harvard study on prosecutorial misconduct.


When the judge is a Facebook friend

Third District Court of Appeal ruled that a Miamai-Dade Circuit Judge would not have to recuse herself from a case in which her former bench colleague and Facebook friend appeared before her as an attorney.


Louisiana’s Attorney Disciplinary Board issued a public reprimand

Louisiana’s attorney disciplinary board issued a public reprimand to an attorney who undertook pro bono representation of a defendant in a criminal case while she was an Assistant Attorney General in the Civil Division in New Orleans. The Board found violations of the Rules of Professional Conduct, but rejected the Disciplinary Counsel’s contention that Ms. Fowler had engaged in criminal conduct.

North Dakota

Judge cites ‘Seinfeld’ in ruling where state’s attorney, defense lawyer exchanged heated words, hearsay

Judge scolds both the state’s attorney and defense for contentiousness where both sides introduced hearsay allegedly said by attorneys from each other’s offices, heated words were exchanged, and old grievances were aired.


Thomas v Eighth Judicial District Ct et al.

The Supreme Court of Nevada granted a criminal defendant’s petition for a writ of mandamus and dismissed the indictment. The Court ordered this extraordinary remedy because it deemed a retrial an inadequate remedy for the trial prosecutor’s “egregious” withholding of exculpatory documents and concluded that the state constitution’s double jeopardy clause should bar re-prosecution of defendant on all counts, even those unrelated to the withheld evidence.

New Mexico

Must DOJ lawyers follow state ethics rules? New Mexico asks SCOTUS to decide

In 2013, the U.S. Department of Justice sued the Supreme Court of New Mexico over a state ethics rule that subjected prosecutors to discilpinary action if they subpoeana lawyers to present evidence about their clients, except in the narrowest of circumstances. The Justice Department claimed the rule interfered with federal grand jury investigations becuase federal prosecutors were hesitant to demand testimony from other lawyers.

In June 2016, a divided panel at the 10th Circuit Court of Appeals sided with the Justice Department. New Mexico’s Supreme Court is now seeking SCOTUS to grant cert to require DOJ prosecutors to comply with state ethics rules.


Prosecutor Faces Hearing Over Her Texting, Facebook Account

The lead prosecutor handling the case against the Penn State fraternity members charged after a pledge died faces a hearing in November to consider whether she considered professional misconduct in texts about cases with judges and by using a fake Facebook account to monitor defendants and their families.


Tennessee Supreme Court publicly censured the District Attorney General for the state’s 24th District

The Tennessee Supreme Court publicly censured a DA for having violated the rules of professional conduct for his repeated harassment of a witness in a murder prosecution.


Prosecutorial Misconduct and the Role of Discipline

An article from the State Bar of Texas that “examines the intersection between error and ethics.”

Dallas County Prosecutor Asked Officer Not to Arrest Her for DWI Because They Were Facebook Friends

Dallas County ADA was arrested on DWI charges after she crashed her car. While talking with police, an encounter that was videotaped, she asked if the officer could give her a break because they were Facebook friends.