Ethics Bulletin 4th Quarter 2017 (January 11, 2018)

Professional Conduct Resources


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Brady/Giglio/Rosario & Other Discovery Issues

Court of Appeals

People v Bautista, 2017 NY Slip Op 07297 (10/19/17) – In a 2-sentence decision, the Court stated “we agree with the courts below that the notes taken during the interviews of an unindicted alleged coconspirator were not subject to disclosure under Brady v Maryland [373 US 83 (1963)] because, contrary to defendant’s contention, the notes were not exculpatory as to defendant’s convictions of criminal tax fraud in the first degree and offering a false instrument for filing in the first degree.”

The First Department also had found that there was no reasonable possibility that the notes, if disclosed, “would have affected the outcome of the trial [see People v Fuentes, 12 NY3d 259, 263 (2009)] since the alleged coconspirator presumably would have invoked his Fifth Amendment right against self-incrimination if called by the defense.” People v Bautista, 132 AD3d 523, 526 (1st Dept 2015).

First Department

People v Walker, 2017 NY Slip Op 07337 (10/19/17) – Record on appeal was insufficient to review defendant’s claim that the People had failed to disclose whether DNA-testable biological material related to the 1991 robbery existed. And, even if such material exists, the cotrial court properly denied defendant’s CPL 440.30(1-a) motion for DNA testing because, “given the facts of the case, there is no reasonable probability that DNA testing of fingerprint evidence recovered from the crime scene (which was matched to defendant’s fingerprints) would have led to a verdict more favorable to defendant.”

People v O’Connor, 2017 NY Slip Op 08605 (12/7/17) – “Although the People obtained records of defendant’s prison sex offender treatment by serving a subpoena on the Department of Correction and Community Supervision that was neither court-ordered nor on notice to defendant, we find that, to the extent there was any violation of the Health Insurance Portability and Accountability Act of 1996 (Pub L 104-191, 110 US Stat 1936) and its accompanying privacy rules (45 CFR parts 160, 164), or of any applicable CPLR provisions, there is no basis for a remand for further proceeding.” Since defendant relied, in part, on his completion of sex offender treatment as a mitigating factor, he affirmatively put his treatement at issue and waived his claims that the records were improperly obtained. The error was also harmless since the court had “ample grounds on which to deny the downward departure.”

Second Department

People v Rong He, 2017 NY Slip Op 09172 (12/27/17) – The People’s withholding of contact information of potential prosecution witnessess did not constitute a Brady violation. See, e.g., People v Pacheco, 38 AD3d 686, 688 (2d Dept 2007); People v LeStrada, 1 AD3d 928, 929 (4th Dept 2003).

Fourth Department

People v Simmons2017 NY Slip Op 06765 (9/29/2017) – On appeal from a judgment convicting him following a jury trial of burglary and conspiracy, defendant contended that County Court should have held a hearing to determine whether there was an undisclosed plea agreement between the prosecutor and defendant’s accomplice, who testified at defendant’s trial. At the start of the trial, the prosecutor stated on the record that “nothing has been offered [to the accomplice in return for his testimony]. There is no agreement. There’s no promise.” The accomplice later testified under oath that there was no agreement. Following the verdict but before sentencing, the accomplice pleaded guilty to a reduced charge. Alleging that the accomplice’s plea was evidence of an undisclosed plea agreement, defense counsel sought an adjournment of sentencing to address that alleged Brady violation. Defense counsel acknowledged, however, that his claim of an undisclosed cooperation agreement was based solely on conjecture. The court denied the request for an adjournment, noting that defendant could later file a motion pursuant to CPL article 440 if he obtained any evidence to support his theory of an undisclosed cooperation agreement. If a cooperation agreement exists between the People and a prosecution witness and the provisions of that agreement are not disclosed to the court and jury, such nondisclosure would require reversal. Here, however, there was no basis in the record upon which to find that there were any undisclosed agreements, and defendant’s contention was thus based entirely on speculation and unwarranted assumptions.

People v Santiago2017 NY Slip Op 08978 (12/22/2017) – The Court ruled that the People did not commit a Brady violation by refusing to disclose the name of a confidential informant. Although a confidential informant’s identity must be disclosed where his or her role in the matter was significant, when he has played a marginal the privilege should prevail absent an extremely strong showing of relevance. Defendant here failed to make such a showing here. The record established that the People provided the defense with a police report indicating that the informant, who was not present at the crime scene, had heard from an unknown source that a woman had removed something from the scene prior to the arrival of police officers. The report also indicated that the informant had heard that the victim had a weapon and fired back at defendant after defendant shot the victim. Thus, inasmuch as the confidential informant’s hearsay information made it appear as if the victim acted in self-defense and not the other way around, there is no reasonable probability that, had it been disclosed to the defense, the result would have been different—i.e., a probability sufficient to undermine the court’s confidence in the outcome of the trial.

Grand Jury

Fourth Department

People v Blauvelt2017 NY Slip Op 08948 (12/22/2017) – The prosecutor engaged in a pervasive pattern of improper conduct at the grand jury proceeding that warranted dismissal of the indictment on the ground that the integrity of the proceeding was impaired. The prosecutor acted improperly in repeatedly asking leading questions of his witnesses and in introducing hearsay evidence. During his cross-examination of defendants, the prosecutor improperly asked them whether other witnesses were lying, and he asked Blauvelt, without any evident good faith basis, whether defendants used illegal drugs on the night of the altercation and whether they used steroids in general. Most egregiously, as described by the court, the prosecutor acted as an unsworn witness by stating personal opinions relevant to material issues during his instructions to the grand jury, i.e., that younger people are more likely than older people to start fights, and that the victim’s injuries must have resulted from “a substantial beating.” The Court reminded the People that a prosecutor owes “a duty of fair dealing to the accused” at a grand jury proceeding and, more generally, that a prosecutor “serves a dual role as advocate and public officer,” and must “not only … seek convictions but [must] also … see that justice is done.” Although the Court thus concluded that the indictment was properly dismissed, it further concluded, in the exercise of its discretion, that the People should be granted leave to resubmit the charges to another grand jury, and we therefore modified the order of the lower court accordingly. The Court noted that the prosecutor had offered to recuse himself and seek the appointment of a special prosecutor to handle the resubmission.

Voir Dire

Second Department

People v Francis, 2017 NY Slip Op 08389 (11/29/17) – Trial court did not err in denying defendant’s Batson challenge to prosecutor’s use of peremptories.

“Under the circumstances of this case, the prosecutor’s challenge based on his lack of sufficient information about the prospective juror cannot be construed to be rooted in racial animosity but rather a rationale with some basis in accepted trial strategy [see People v Hecker, 15 NY3d at 625, 658 (2010)]. Moreover, ‘[w]hile the sufficiency of the prima facie case showing becomes moot once a party states its race-neutral reasons for lodging a peremptory strike,… the strength or paucity of the step one showing is a factor that should be considered in determining whether the record as a whole supports a finding of pretext” [Hecker, 15 NY3d at 660]. Here, defense counsel noted only that ‘both [prospective] Jurors No. 4 and 14 are female blacks.’ ‘[P]urely numerical or statistical arguments are rarely conclusive in the absence of other facts or circumstances’ to give rise to an inference of discrimination” [Hecker, 15 NY3d at 651, quoting People v Brown, 97 NY2d 500, 507 (2002); other citations omitted]. The Supreme Court’s determination that the challenge was not pretextual was based largely on its assessment of the prosecutor’s credibility, which is entitled to great deference on appeal [citations omitted]. Inasmuch as the court’s determination is supported by the record, it will not be disturbed [see People v Norris, 98 AD3d 586 (2d Dept 2012)].

Third Department

People v Thomas, 2017 NY Slip Op 07647 (11/2/17) – Upheld trial court’s denial of defendant’s Batson challenge to prosecutor’s use of peremptories to eliminate the only two African-Americans in the first panel as the explanations were sufficiently race-neutral on their face, and defense counsel did not thereafter articulate any additional facts or relevant circumstances that would warrant further exploration.

“The People explained that juror No. 2 was challenged because, among other things, her father worked in a correctional facility and she had an ex-boyfriend who had been convicted of a robbery [see People v Acevedo, 141 AD3d 843, 846 (3rd Dept 2016)]. The People indicated that they challenged juror No. 11 because, among other things, he had made statements indicating a possible inability to follow the law and based upon his involvement in the ministry.”

People v Molineux, 2017 NY Slip Op 09206 (12/28/17) – Trial court did not err when it denied the defendant’s Batson challenge, made after the prosecutor used a peremptory challenge to strike the only African-American on the panel. Defense counsel pointed to the fact that this was the only African-American on the panel and noted some of his other characteristics. But he

“failed to demonstrate that other jurors who were not African American and who had the same relevant characteristics were accepted [see People v Morris, 140 AD3d 1472, 1476 (3rd Dept 2016); People v King, 277 AD2d 708 (3rd Dept 2000)]. Therefore, defendant did not establish that the People’s peremptory challenge was based on the juror’s race, as he ‘failed to identify, allege or develope facts or other relevant circumstances sufficient to raise an inference that the prosecutor used the challenge for discriminatory purposes’ [King, 277 AD2d 708, 708] [other citations omitted].”

Fourth Department

People v Armendariz2017 NY Slip Op 08976 [12/22/2017] – Although it was improper for the prosecutor to question prospective jurors about their attitudes towards the laws of New York pertaining to statutory rape, defendant has failed to show the absence of a strategic reason for counsel’s failure to object so as to support a finding of ineffective assistance of counsel.


Fourth Department

People v Barber2017 NY Slip Op 07807 (11/9/2017) – Defendant contended that he was denied a fair trial as a result of several instances of alleged prosecutorial misconduct. Although defendant did not object to all of the prosecutor’s allegedly improper remarks and thus failed to preserve his contention for our review with respect to those remarks, the Court exercised its power to review his contention with respect to all of the prosecutor’s allegedly improper remarks as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ). It noted one remark in particular that occurred during the People’s opening statement. The prosecutor stated that “the signs of [defendant’s] unbridled obsession were still on him in the form of his white T–shirt covered in [the victim’s] blood.” As the prosecutor was well aware, however, defendant’s shirt had been destroyed by the police and was unavailable for defendant’s inspection or as evidence at trial. It was later revealed through cross-examination of the forensic biologist who examined the shirt that there had been just three small spots of blood on the shirt, the largest of which was slightly larger than one square centimeter. Thus, it is apparent that the prosecutor grossly exaggerated the amount of the victim’s blood on that piece of lost evidence. Although the prosecutor’s remark was improper, the Court concluded that reversal was unwarranted because the misconduct did not substantially prejudice defendant’s trial. Nevertheless, the Court did take this opportunity to remind the prosecutor hat she is “charged with the responsibility of presenting competent evidence fairly and temperately, not to get a conviction at all costs” (People v. Mott, 94 A.D.2d 415, 418, 465 N.Y.S.2d 307 [4th Dept.1983]).


Second Department

People v Springs, 2017 NY Slip Op 09176 (12/27/17) – In affirming the trial conviction of Criminal Possession of a Weapon 3°, the Second Department rejected contentions that Springs was denied a fair trial:

  • Evidence that Springs initially ran a red light was not improper. The Grand Jury had indicted him on such a charge & there was no indication in the record that the People acted in bad faith in submitting the charge for the Grand Jury’s consideration [see People v Roscia, 171 AD2d 931, 933 (2d Dept 1991)].
  • Evidence that Springs was arrested for driving with a suspended license deemed proper in order to complete the narrative & explain why defendant was arrested after being stopped for running the red light [citing to, inter alia, People v Morris, 21 NY3d 588 (2015), and People v Tosca, 98 NY2d 660(2002)]; further, this testimony was more probative than prejudicial [cf., People v Resek, 3 NY3d 385, 389 (2004)].

Also, the trial court did not abuse its discretion in denying the defense motion for a mistrial, after a prosecution witness inadvertently made a reference (on cross-examination) that suggested Springs was on probation at the time of his arrest. The trial court had “immediately struck the testimony, and its cautionary instructions were sufficient to prevent any prejudice.”

Third Department

People v Grierson, 2017 NY Slip Op 07344 (10/19/17) – Third Department ordered a new trial of the weapons possession indictment because, in part, of the nature-extent of investigating officers’ direct testimony.

Four officers testified as to the statements given them by defendant’s roommates (one of whom was his sister) that gave rise to the search for the gun. “It is well settled that ‘[s]uch [testimony] may be permitted if it is admitted not for its truth but for the narrow purpose of explaining an officer’s actions and the sequence of events in an investigation’ [People v Gregory, 78 AD3d 1246, 1246-1247 (3rd Dept 2010); other citations omitted]. Here, although general and cursory testimony by one of the officers would have sufficed to explain why they began to search for a weapon, County Court permitted all four officers to testify in detail that Jones and Grierson stated that defendant had a gun and also allowed the People to elicit further information from two of the officers as to Jones’ and Grierson’s description of the gun. In light of the repetitive and detailed nature of the testimony, we find that it exceeded the permissible scope of explanatory background information [cf. People v DeJesus, 134 AD3d 463, 463-464 (1st Dept 2015); compare People v Gregory, 78 AD3d 1246, 1247 (3rd Dept 2010); People v Nieves, 294 AD2d 152, 152-153 (1st Dept 2002)].”

People v Favors, 2017 NY Slip Op 07632 (11/2/17) – Fact that Favors’ probation officer testified at trial provided no basis for reversal.

  • “Prior to trial, the People submitted to the court a list of proposed questions and the officer’s expected answers, and the court permitted testimony solely to establish defendant’s address, i.e., to establish that defendant did not live at the victim’s apartment, which was relevant to the burglary charge”;
  • “At trial, the officer’s testimony was limited to the fact that he was employed by the state, knew defendant in a professional capacity and maintained a record of and visited defendant’s residence, which never included the victim’s residence. Neither the officer’s job title nor the fact that defendant had a criminal history and was under parole supervision was disclosed during this testimony”;
  • The jury was specifically instructed that it should speculate as to any matters not in evidence; and
  • Probation officer’s circumscribed testimony pertained to only the burglary charge, and the jury acquitted Favors of that charge.

People v Nelson, 2017 NY Slip Op 08903 (12/21/17) – Holding that trial court did not err when it (1) granted the People’s mid-trial request — because a prosecution witness’s testimony “began to deviate from the statements that she had previously given” — for a Sirois hearing [see People v Sirois, 92 AD2d 618 (2d Dept 1983)], and (2) subsequently allowed the People to introduce the witness’s unsworn statement that she gave 2 days after defendant’s arrest.

  • The People adduced ample evidence that “defendant used his close relationship with [the witness] in order to pressure her into testifying falsely [citations omitted].”
  • And “‘[u]navailability’ in this context is not limited to a witness’s outright refusal to testify or physical absence from the proceedings; a witness is practically or effectively unavailable where the witness recants his or her initial statements or otherwise changes his or her version of the events as a result of misconduct on the part of the defendant [citing to, inter alia, People v Cotto, 92 NY2d 68, 73-74 (1998), and People v Turner, 143 AD3d 566, 567 (1st Dept 2016)]. ‘To deem a testifying, but recanting witness ‘available’ for Confrontation Clause purposes, as defendant suggests, would provide witness tamperers with an incentive to induce witnesses to recant rather than to refrain from testifying at all’ [People v White, 4 AD3d 225, 226 (1st Dept 2004)].”

People v Williams, 2017 NY Slip Op 09196 (12/28/17) – At trial for Burglary 2° and Robbery 3°, the People should not have been permitted to make use, on their direct case, of this defendant’s 2009, Burglary 3° conviction. The 3rd Department recognized that Williams’ intent was at issue, but

“the prior conviction did not involve a robbery, but rather arose from an incident during which the defendant entered the residence of another with the intent to assault the occupant. Moreover, [an accomplice’s] testimony, if believed, was sufficient to permit the jury to find that [Williams] had the requisite intent to commit the burglary and robbery. Accordingly, the evidence that defendant had commited a prior burglary would serve only to demonstrate that [he] had a propensity to commit burglary and…should have [been deemed] inadmissible [citing to People v Billups, 45 AD3d 1176, 1177 (3rd Dept 2007), and People v Ball, 154 AD3d 1060, 1064 (3rd Dept 2017)].”

The Appellate Division court also held that this same conviction should not have been permitted as appropriate for impeaching defendant on cross-examination. But because the evidence of Williams’ guilt was overwhelming and because “there is no significant probability that defendant would have been acquitted in the absence of the errors [citations omitted]”, it concluded these errors were harmless.

Fourth Department

People v Vargas2017 NY Slip Op 07801 (11/9/2017) – The prosecutor engaged in misconduct by improperly eliciting prejudicial testimony about defendant’s nickname, “Diablo,” for purposes other than identification from witnesses who knew defendant by his real name. However, such conduct was not so egregious as to deny defendant a fair trial. The remaining instances of prosecutorial misconduct alleged by defendant were not preserved for review, and the Court declined to exercise its power to review them as a matter of discretion in the interest of justice.

People v Larkins2017 NY Slip Op 06752 (9/29/2017) – The People did not violate the court’s Molineux ruling by asking a New York State Trooper during redirect examination a question indicating that the bulletin the toll collectors described concerned an incident in Onondaga County. There was no prejudice from the mention of the name of the county from which the bulletin emanated and, even assuming, arguendo, that defendant was prejudiced at all, such prejudice was minimal.


First Department

People v Ferrer, 2017 NY Slip Op 07215 (10/17/17) – “Defendant did not preserve his challenge to the prosecutor’s inquiry, during defendant’s cross-examination, about a novel written by defendant that had an alleged nexus to the facts of this case, and we decline to review it in the interest of justice. As an alternative holding, we find no basis for reversal. While the inquiry into a crime novel defendant wrote approximately five years before this crime was of little probative value regarding his motive, intent, or credibility, any error was harmless in light of the overwhelming evidence of defendant’s guilt.”

And, “defendant also failed to preserve his arguments that the trial prosecutor, who participated in defendant’s interrogation, acted as an unsworn witness during defendant’s cross-examination, and that portions of defendant’s recorded statement in which the trial prosecutor opined that defendant was not telling the truth should have been redacted, and we decline to review them in the interest of justice. As an alternative holding, we reject those arguments on the merits. The fact that the trial prosecutor also participated in defendant’s interrogation was not in itself a basis for recusal, nor a basis for reversal here, where her investigative role was not a material issue at the trial, as defendant argued that his statement was coerced because he was threatened by detectives outside of that prosecutor’s presence. Defendant, in arguing that his confession was coerced, opened the door to the admission of the unredacted confession, to allow the jury to make a determination, based on the surrounding circumstances, of its truthfulness. The potential for prejudice did not substantially outweigh the probative value of the confession, as the prosecutor’s comments, when read in context, were not unduly prejudicial to defendant, and redactions of the comments, which were intertwined with relevant parts of the interrogation, would have rendered the statement difficult to understand” (internal citations omitted).

Second Department

People v Kaval, 2017 NY Slip Op 07274 (10/18/17) – Defendant’s claim that trial court should have given a curative instruction concerning the prosecutor’s cross-examination of defense witnesses’ failure to come forward with exculpatory information prior to trial was unpreserved for appellate review because he did not ask for an instruction or even object to that line of questioning. “In any event, contrary to the defendant’s contention, the prosecutor established a proper foundation to inquire pursuant to People v Dawson [50 NY2d 311, 321 (1980)] and, to the extent the prosecutor improperly referenced one defense witness’s failure to come forward during grand jury proceedings, that reference was an isolated instance which was not so misleading as to warrant reversal (see id. at 323-324).”

People v Estevez, 2017 NY Slip Op 07615 (11/1/17) – After reversing, in the interest of justice, the convictions of murder and assault in the second degrees owing to the trial court’s repeated and prejudicial intervention in the conduct of the trial, the Second Department also noted that

“it was improper for the prosecutor to elicit from the defendant the fact that he was incarcerated pending trial [see People v Machicote, 251 AD2d 684 (2nd Dept 1998); People v Connor, 137 AD2d 546, 550 (2nd Dept 1988)), as no legitimate State interest was served by disclosing that information under the circumstances of this case [cf. People v Jenkins, 88 NY2d 948 (1996)].”

Third Department

People v Grierson, 2017 NY Slip Op 07344 (10/19/17) – The People should not have impeached defendant’s wife, one of their own witnesses, with her grand jury testimony.

“A party may impeach its own witness with a prior contradictory statement when the witness gives testimony upon a material issue or fact which tends to disprove the party’s position or affirmatively damages the party’s case [internal punctuation and citations omitted]. Although Grierson testified before the grand jury that she told the police officers about her previous conversation with defendant concerning a gun and her belief based upon that conversation that defendant might have a gun in the apartment, at trial she denied that she made those statements to the officers. She did admit, however, that she had the previous conversation with defendant. In our view, Grierson’s trial testimony did not tend to disprove the People’s position that defendant constructively possessed the gun, nor did it affirmatively damage their case. Rather, Grierson’s trial testimony merely failed to corroborate or bolster the officers’ explanatory background testimony. Accordingly, the People should not have been permitted to impeach Grierson with her grand jury testimony [see People v Fitzpatrick, 40 NY2d 44, 52 (1976); People v Abrams, 73 AD3d 1225, 1227 (3rd Dept 2010), affd 17 NY3d 760 (2011); People v Andujar, 290 AD2d 654, 656 (3rd Dept 2002); compare People v Davis, 45 AD3d 1039, 1042 (3rd 2007)].”

The Third Department rejected the argument that this and the error in the direct examinations of investigating officers (discussed above under Direct Examination heading) should be deemed harmless. This was a wholly circumstantial case and the proof of defendant’s guilt was not overwhelming; additionally, the errors were compounded by the prosecutor’s use of them in summation.

Fourth Department

People v Larkins2017 NY Slip Op 06752 (9/29/2017) – Defendant’s contention concerning an allegedly improper comment made by the prosecutor during cross-examination was not preserved for review inasmuch as defense counsel failed to request any further relief after the court sustained his objection to the comment.

People v Lewis2017 NY Slip Op 07070 (10/6/2017) – Defense counsel was not ineffective for failing to object to the prosecutor’s cross-examination of defendant and the prosecutor’s comments during summation inasmuch as failure to make an objection that has little or no chance of success does not constitute ineffective assistance of counsel. Generally, it is improper for a prosecutor to force a defendant on cross-examination to characterize the prosecution witnesses as liars. Nevertheless, “a distinction has to be made between a defendant’s testimony that conflicts with that of the People’s witnesses and yet is susceptible to the suggestion that the witnesses spoke out of mistake or hazy recollection and the situation where, as here, the defendant’s testimony leaves open only the suggestion that the People’s witnesses have lied. In the latter circumstance, the prosecution has the right to ask whether the witnesses are liars.” People v. Overlee, 236 AD2d 133, 139, 666 NYS2d 572, lv denied 91 NY2d 976672 NYS2d 855695 NE2d 724; see People v Walker, 117 AD3d 1441, 1441, 986 NYS2d 284, lv denied 23 NY3d 1044993 NYS2d 25817 NE3d 513; People v Head, 90 AD3d 1157, 1158, 933 NYS2d 774).


Second Department

People v Tout-Puissant, 2017 NY Slip Op 07621 (11/1/17) – Defendant’s contention that “some of the prosecutor’s comments during summation regarding his failure to call certain witnesses to corroborate his testimony impermissibly shifted the burden of proof and deprived him of a fair trial” not preserved for appellate review, and in any event, had no merit.

“[W]here, as here, a defendant elects to present evidence of his innocence, his failure to call certain witnesses in support of his defense may be brought to the jury’s attention by the prosecutor on summation, provided that the prosecutor’s comments are, as here, not made in bad faith and are merely efforts to persuade the jury to draw inferences supporting the People’s position [see People v Wongsam, 105 AD3d 980, 981 (2d Dept 2013); People v Floyd, 97 AD3d 837, 837-838 (2d Dept 2012); People v Gross, 78 AD3d 1196, 1197 (2d Dept 2010)].”

Fourth Department

People v Larkins2017 NY Slip Op 06752 (9/29/2017) – Defendant made only an untimely specific objection after the prosecutor’s summation ended, and thus he failed to preserve his contention that the prosecutor committed an act of misconduct by making an improper comment during summation. In any event, even if the comment at issue exceeded the bounds of proper advocacy and thus constituted misconduct, the misconduct was not so pervasive or egregious as to deprive defendant of a fair trial. Moreover, the court sustained defendant’s objection to the improper comment and instructed the jury to disregard it, and the jury is presumed to have followed the court’s instructions.

People v Courteau154 AD3d 1317 [4th Dept 2017], rearg denied, 2017 NY Slip Op 09104(12/22/2017) – Defendant appeals from a judgment convicting her upon a jury verdict of endangering the welfare of a child, arising out of defendant’s conduct in connection with a traumatic brain injury sustained by an 18–month–old child when the child was in defendant’s care. The jury acquitted defendant of the more serious charges of assault in the first degree (§ 120.10[3] ), reckless assault of a child (§ 120.02[1] ) and reckless endangerment in the first degree (§ 120.25). Defendant failed to preserve for review her contention that the prosecutor, during summation, improperly urged the jury to speculate concerning defendant’s mental state at the time that the child was in her care (see People v Smith, 32 AD3d 1291, 1292, 821 NYS2d 356, lv denied 8 NY3d 849830 NYS2d 708862 NE2d 800). In any event, even assuming that the prosecutor’s comment was improper, it was not so egregious that it deprived defendant of a fair trial.

People v Young2017 NY Slip Op 06779 (1/29/2017) – – All of the unpreserved instances of alleged misconduct during summation were either fair comment on the evidence or fair response to defense counsel’s summation Turning to the two preserved instances of alleged misconduct, the Court agreed with defendant that a comment by the prosecutor during summation constituted impermissible burden-shifting. The trial 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 prosecutor also 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 such misconduct was not so pervasive or egregious as to deny defendant a fair trial.

People v Lewis2017 NY Slip Op 07070 (10/6/2017) – Although courts have disapproved of a prosecutor, in summation, characterizing the defense theory as a ‘conspiracy’ by the prosecution witnesses to convict the defendant, the prosecutor’s remarks here constituted a fair response to the defense counsel’s. In summation, defense counsel argued that the victims had fabricated their testimony and had “conspire[d] to hurt [defendant] and hurt him in the worst way.” With respect to the remaining allegations of prosecutorial misconduct, the prosecutor did not improperly vouch for the credibility of the prosecution witnesses. Rather, the prosecutor’s attempts to persuade the jurors as to the credibility of the victims and their accounts constituted fair comment on the evidence and fair response to the summation of defense counsel.

People v Mastowski2017 NY Slip Op 08113 (11/17/2017) – Although defendant did not object to most of the comments he alleged on appeal deprived him of a fair trial by prosecutorial misconduct during summation, the Court did admonish the prosecutor and remind him that prosecutors have special responsibilities to safeguard the integrity of criminal proceedings and fairness in the criminal process. With respect to the one preserved instance of alleged misconduct, the Court concluded that defendant’s contention was without merit. Contrary to defendant’s contention, the prosecutor did not call him a “liar” during summation; rather, the prosecutor argued that defendant “lie[d] to the police about his alcohol consumption” prior to operating his motor vehicle at the time and place at issue. The Court concluded that the prosecutor’s remark was fair comment on the evidence.

People v Jones155 AD3d 1547 (4th Dept 2017), amended on rearg, 2017 NY Slip Op 09105(12/22/2017) – The majority of the comments challenged by defendant on appeal were within the broad bounds of rhetorical comment permissible during summations. The prosecutor’s closing statement must be evaluated in light of the defense summation, which put into issue the witnesses’ character and credibility and justified the People’s response. Additionally, even assuming, arguendo, that any of the prosecutor’s comments may have exceeded the bounds of propriety, such comments were not so pervasive or egregious as to deprive defendant of a fair trial.

Conflict of Interest-Appearance of Impropriety

First Department

People v Peters, 2017 NY Slip Op 08497 (12/5/17) – “[D]efendant’s right to effective assisatnce of counsel was infringed by an actual conflict” where defendant, the alleged drug seller in an observation drug sale case, was appointed the same attorney at his criminal court arraignment as Jones, one of the alleged buyers. “During the course of counsel’s simultaneous representation of defendant and Jones, Jones accepted a plea that required him to allocute to a description of one of the drug sellers,” and Jones “allocuted a description fitting defendant, and testified consistently witht he aoolucation as a prosecution witness at [defendant’s] trial.” Judgment reversed and People precluded from using the testimony of Jones at any retrial.

People v Southall, 2017 NY Slip Op 08344 (11/28/17) – A juror’s failure to disclose that, two days before being sworn as a trial juror, she applied for the position of Assistant District Attorney with the same DA’s office that prosecuted the defendant, deprived defendant of his right to a fair trial. Accordingly, the 1st Dept granted defendant’s CPL 440.10 motion, and remanded for a new trial.

Third Department

People v Brooks, 2017 NY Slip Op 08406 (11/30/17) – In affirming defendant’s crack sale convictions, the 3rd Department rejected his contention that the trial court should have granted his motion to disqualify the DA’s Office, based on the fact that the current District Attorney, in his previous role as an Assistant Public Defender, had represented defendant on an earlier drug sale prosecution.

“[T]he fact that the District Attorney may have previously represented defendant in prior, unrelated criminal matters, without more, does not require his disqualification” [People v Giroux, 122 AD3d 1063, 1064 (3rd Dept 2014); see People v Durham, 148 AD3d 1293, 1294-1295 (3rd Dept), lv denied29 NY3d 1091 (2017); People v Early, 173 AD2d 884, 885 (3rd Dept 1991)]. The District Attorney played, at most, a minor role in the case relating to the 2005 sales by ‘filling in’ for assigned counsel at a court appearance. Defendant made no effort to show what confidences, if any, the District Attorney learned during his fleeting association with the prior case that could be abused in the current one. Thus, in the absence of ‘actual prejudice arising from a demonstrated conflict of interest or a substantial risk of an abuse of confidence,’ we agree with County Court that disqualification was not warranted [Matter of Schumer v Holtzman, 60 NY2d 46, 55 (1983); see People v Zinkhen, 89 AD3d 1319, 1320 (3rd Dept 2011)].


First Department

People v Sanchez, 2017 NY Slip Op 08193 (11/21/17) – Judgment reversed where the court misadvised defendant that he could pursue his 30.30 claim on appeal of a guilty plea and neither the defense counsel nor the prosecutor corrected the court’s misadvice.

People v Garland, 2017 NY Slip Op 08302 (11/28/17)- Defendant did not meet his burden of demonstrating that the People’s staement of readiness was illusory where the record established that “the prosecutor had reestablished contact with the complainant at the time that he filed the off-calendar statement of readiness.”

People v Clarke, 2017 NY Slip Op 08736 (12/15/17) – Defendant’s claim of improper judicial interference unpreserved. As an alternative holding, to the extent that any remarks by the court were inappropriate, the court maintained sufficient neutrality to avoid undermining defendant’s right to a fair trial. “The only preserved aspect of defendant’s claim of prosecutorial error is his argument that the People returned jewelry stolen from the victims without providing the notice required by CPL 450.10; however, the record supports the court’s finding that any prejudice caused by the absence of the physical evidence was sufficiently minimized by photos of the jewelry introduced at trial.” Any error related to the conduct of the court and prosecutor were also harmless.

Fourth Department

People v Gessner2017 NY Slip Op 08136 (11/17/2017) – Defendant appealed from a judgment convicting him upon his plea of guilty of attempted sexual abuse in the first degree (Penal Law §§ 110.00, 130.65[1] ). Defendant’s contention that the People acted vindictively in presenting the felony charge to the grand jury was forfeited by his plea of guilty and, in any event, was encompassed by his valid and unrestricted waiver of the right to appeal.

Disciplinary & Other Proceedings/Sanctions

Former Brooklyn ADA Disbarred

Former Kings County ADA disbarred after she pleaded guilty in the United States District Court (EDNY) to two felony counts of illegal interception of communications.

Other News

New York

Press Release from Chief Judge DiFiore

Chief Judge DiFiore Announces Implementaion of New Measures Aimed at Enhancing the Delivery of Justice in Criminal Cases.

Suffolk judge texted prosecutors from bench, could face sanctions

Suffolk County judge removed from case after prosecutors disclosed that she sent text messages, guiding them on how to charge and try a case.

Two Suffolk district attorney murder cases fall apart

Two Suffolk County cases handled by former prosecutor are dismissed.

Upstate NY DA Faces Perjury, Misconduct Charges in Fatal Police Shooting

Rensselaer County DA Joel Abelove arraigned on charges that accuse him of withholding evidence from a grand jury that cleared a police officer who killed a man during a traffic stop in April 2016.

Indicted Suffolk DA Spota Announces Plan to Resign on Friday

Suffolk County DA Thomas Spota indicted on charges of obstruction of justice, conspiracy to tamper with a witness, witness tampering and obstruction of an official proceeding. Spota therafter announced his resignation.

Judge To Decide if Lying Is Endemic to NYPD

A case that touches on the credibility of New York City Police Department officers and how well the city is supervising them will be heard by a jury in January, Senior U.S. Eastern District Judge Jack B. Weinstein ordered Tuesday.

Around the U.S.


ABA Warns Judges of Ethical Problems Over Benches’ Internet Research

U.S. Circuit Court of Appeals, DC Cir.

State inmate not entitled, under FOIA, to proposed termination letter re former AUSA who prosecuted him 20+ years ago


State Bar will implement new ethics rule addresing prosecutor misconduct


Former prosecutor suspended for having “tinned” his way out of speeding citations

Indiana’s Supreme Court suspended former deputy prosecutor from the practice of law for 6 months, following his conviction for criminally impersonating a public servant. When stopped for speeding on two different occasions, he displayed his old badge and announced he was currently with the county prosecutor’s office (highway officers did not issue a ticket either time).

Local prosecutor suspended, chiefly because he eavesdropped on privileged attorney-client conversations The Indiana Supreme Court suspended, for “at least” 4 years, a deputy prosecutor in the LaPorte County Prosecuting Attorney’s Office, for listening to — on two different occasions more than a year apart — police stationhouse conversations between attorneys and suspects that were broadcast (unbeknownst to counsel and their clients) during a break in the officially recorded questioning of the respective suspects. The Court concluded that this, together with some ancillary conduct, violated Rules 4.4(a) (Using methods of obtaining evidence that violate the legal rights of a third person) and 8.4(d) (Engaging in conduct prejudicial to the administration of justice) of Indiana’s Rules for Professional Conduct.


AUSA’s affair with FBI Special Agent, with whom she worked, was catalyst for disciplinary charges & suspension


Panel Recommends Public Reprimand Platte County Prosecutor

The Missouri’s Office of Chief Disciplinary Counsel (OCDC), the agency responsible for overseeing attorney conduct, found that Zahnd had committed multiple ethical violations when he sought to pressure community members to withdraw letters they had written in support of a convicted child molester prior to his sentencing in October 2015.

New Jersey

Part-time municipal prosecutor suspended from the practice of law for 6 months & prohibited from serving as a municipal prosecutor for 5 years

The state Supreme Court’s order is silent on the nature of the professional misconduct at issue, but the underlying decision of its Disciplinary Review Board reveals that this part-time prosecutor had “fixed” the speeding ticket of a man who was her tenant and an employee of the business owned and operated by the prosecutor and her husband. The DRB also concluded that she had made false statements of material facts to the court that had jurisdiction of the traffic offense and “during the criminal and ethics investigations into her conduct.”

New trial after prosecutors show the jury video clips in summation that were not in evidence

New Jersey appeals court ordered a new trial for a man convicted of killing an off-duty Newark police officer in 2011, finding that prosecutors should not have been allowed to show jurors video clips during summation that were not put into evidence earlier.