Ethics Bulletin 1st Quarter 2017


Brady/Giglio/Rosario & Other Discovery Issues

First Department

1st Quarter 2017

People v Richardson, 2017 NY Slip Op 01304 (1/21/17) – First Department upheld trial court’s rejection of defendant’s Brady claim that allegedly exculpatory material — turned over by the People before trial — was “too stale” to use. “Even under the standard applicable where a defendant makes a specific request for the evidence at issue, there is no ‘reasonable possibility’ that earlier disclosure of statements indicating that the offense happened on January 12 rather than January 11, 2008, or that persons other than the two alleged perpetrators participated in the murder, ‘would have changed the result of the proceedings’ [People v Fuentes, 12 NY3d 259, 263 (2009)].”

“As noted, there was overwhelming evidence, including the presence of defendant’s DNA on the victim’s body and other proof having no reasonable explanation other than defendant’s guilt. The statement by defendant’s accomplice that the incident occurred on January 12 was not material in light of the accomplice’s later statements that the incident occurred on January 11, defendant’s undisputedly admissible statement where he admitted taking money from the victim in her apartment on January 11, surveillance video showing defendant repeatedly taking the elevator up to the victim’s floor of her apartment building over the course of many hours on that date, and the records of defendant’s employer showing that defendant lied when he told the police he worked as scheduled on that date. In this case where the number of perpetrators was uncertain, the statements by others suggesting that various persons aside from defendant and his known accomplice might have also participated in the offense ‘were reconcilable with the trial testimony’ [People v Buie, 289 AD2d 140, 141 (1st Dept 2001)]. The court also providently exercised its discretion in declining to permit defendant to elicit hearsay as a remedy for the delay in disclosure [ibid].”

People v Martin, 2017 NY Slip Op 01309 (2/21/2017) – Defense request for unspecified “paperwork” concerning an unrelated search warrant executed by the same team of officers on the day they executed the warrant that led to defendant’s arrest did not preserve claim advanced on appeal that he “was entitled to these documents as Rosario material,” and First Department declined to review it in the interest of justice.

“As an alternative holding, we reject it on the merits. Assuming that the undisclosed materials included any statements by a witness who testified at defendant’s trial, there is nothing to indicate that these statements concerning the other search warrant would have ‘relate[d] to the subject matter of the witness’s testimony’ [CPL 240.45(1); People v Mack, 100 AD3d 460 (1st Dept 2012)].”

People v Edward Garry, 6083/1995 (Sup Ct, Bronx County March 2017) – Following a hearing, a Bronx Supreme Court Judge granted defendant’s CPL 440 motion to vacate the conviction on Brady grounds. The judge found that the DA’s office failed to disclose an informant’s testimony in the 1995 murder of a retired police officer (Potter) during the robbery of an illegal gambling operation in a Bronx bodega. Specifically, the People failed to disclose an informant’s tip that a third-party had confessed to shooting someone during the robbery of a grocery store on the same street and year as the Potter murder. Defendant’s actual innocence claim was rejected. Read the Law Journal article here: Judge Says DA Withheld Evidence – Orders New Trial

Second Department

1st Quarter 2017

People v Pleasant, 2017 NY Slip Op 00490 (1/25/17) – “[D]efendant moved to set aside the verdict pursuant to CPL 330.30 (3) . . . [alleging] that the prosecution . . . fail[ed] to disclose that, pursuant to a joint investigation by the Yonkers Police Department’s Internal Affairs Division and the Westchester County District Attorney’s Office, it was discovered that Detective Christian Koch, who testified at the suppression hearing, made material, false statements in a search warrant affidavit in an unrelated case. The County Court denied the motion, finding, inter alia, that the defendant failed to establish that a Bradyviolation had occurred.

“. . . While it is undisputed that the purported Brady material was favorable to the defendant for the purpose of impeaching Detective Koch’s testimony (see People v Garrett, 23 NY3d 878, 886 [2014]), the defendant failed to show that the People suppressed the purported Brady material. Although the People are charged with knowledge of exculpatory information in the possession of the local police, notwithstanding the trial prosecutor’s own lack of knowledge . . . '[a] police officer’s secret knowledge of his own prior illegal conduct in [an] unrelated case . . . will not be imputed to the prosecution for Brady purposes where the People had no knowledge of the corrupt officer’s “bad acts” until after . . . trial’ ” (People v Garrett, 23 NY3d at 887-888, quoting People v Johnson, 226 AD2d 828, 829 [1996]; see People v Vasquez, 214 AD2d 93, 95 [1995]; see e.g. People v Kinney, 107 AD3d 563, 564 [2013]; People v Longtin, 245 AD2d 807, 810 [1997], affd 92 NY2d 640 [1998]). Here, the People did not discover Detective Koch’s false statements until after the trial had ended. Accordingly, the County Court properly denied the defendant’s motion to set aside the verdict pursuant to CPL 330.30 (3).”

Third Department

1st Quarter

People v Bottomley, 2017 NY Slip Op 00047 (1/5/17) – Third Department ruled that the trial court did not err in denying defense motion for a mistrial, occasioned by the People’s belated production of a State Police radio log sheet that demonstrated Investigator Koveleskie had not arrived at Bottomley’s home until more than an hour later than Koveleskie had testified to previously.

“Koveleskie testified at the suppression hearing that he arrived at defendant’s residence around 4:00 p.m. or 4:30 p.m., and he recorded about 50 minutes of their interactions there. However, defendant and Koveleskie did not arrive at State Police barracks until after 6:30 p.m., seemingly leaving an undocumented hour or more in which the two men were alone. Defense counsel, over the People’s objection, pointed out this gap in his opening statement at trial.” Before the People began their direct case, the prosecutor produced the radio log sheet showing that 5:44 pm was the time Koveleskie arrived at defendant’s residence.

On appeal, Bottomley argued that the radio log was Rosario material, but the mistrial motion was not based on that ground; indeed, defense counsel acknowledged that the log was “not Rosario.” Consequently, the newfound claim had not been preserved for the Third Department’s review.

“In any event, the People promptly disclosed the radio log after learning of its existence, the reference to the time gap in defendant’s opening statement was brief and defense counsel had the opportunity to cross-examine Koveleskie regarding the inaccuracies in his suppression hearing testimony revealed by the radio log. Supreme Court further invited defendant to request an ameliorative instruction to the jury or other corrective action. Under these circumstances, defendant did not demonstrate prejudice substantial enough to warrant a mistrial [citing to, inter alia, People v Watson, 281 AD2d 691, 695-696 (3rd Dept 2001)].”

Fourth Department

1st Quarter

People v Taylor, 2017 NY Slip Op 02224 (3/24/17) – The Court agreed with defendant that the convictionsthat a witness had in 1993 for petit larceny constituted Brady material. However, even assuming, arguendo, that the information regarding those convictions was available to the People, there was no reasonable possibility that the information would have changed the result of the proceedings.

People v Switts, 2017 NY Slip Op 02226 (3/24/17) – Defendant claimed that the court erred in denying his CPL 440.10 motion without a hearing to the extent that it alleged that the People committed Brady and Rosario violations by failing to disclose a flash drive containing a typewritten statement by the victim that a police investigator used as a basis for the victim’s supporting deposition. The People disclosed hard copies of the typewritten statement and deposition prior to trial, and defense counsel did not raise any objection when the investigator mentioned the flash drive in his trial testimony. Even assuming, arguendo, that the relevant part of the motion was not subject to denial on procedural grounds (cf. CPL 440.10[2][b]; [3][a] ), the court rejected defendant’s contention. Defendant did not make a prima facie showing of a reasonable possibility that the nondisclosure of the flash drive contributed to his conviction. Thus, regardless of whether he made a specific discovery request encompassing the flash drive for purposes of his Brady claim, he failed to establish materiality under Brady or prejudice under Rosario.

People v Brockway, 2017 NY Slip Op 02582 (3/31/17) – Defendant’s contention that the People violated their Brady obligation was forfeited by his guilty plea and was in any event without merit. Defendant did not establish that the People had access to his text messages prior to his plea or that those messages were exculpatory, and his speculation concerning the existence of allegedly exculpatory video evidence was insufficient to establish a Brady violation.

People v Brown, 2017 NY Slip Op 02190 (3/24/17) – The Court rejected defendant’s contention contends that County Court abused its discretion in failing to preclude the testimony of an undercover officer as a sanction for the People’s destruction of Rosario material, i.e., audio recordings of two failed drug purchases. Nonwillful, negligent loss or destruction of Rosario material does not mandate a sanction unless the defendant establishes prejudice. If prejudice is shown, as it was here, the proper sanction for eliminating that prejudice is left to the sound discretion of the trial court, which may consider the degree of prosecutorial fault. Under the circumstances of this case, where there was testimony that the audio recordings were destroyed as part of a routine police practice, the Fourth Department concluded that the court did not abuse its discretion in refusing to preclude the undercover officer’s testimony and instead imposing the lesser sanction of an adverse inference charge. Defendant further contended that the adverse inference charge was erroneous as given, but he failed to preserve his contention for review. To the extent that defendant contended that the audio recordings were Brady material, the Fourth Department rejected his contention because he failed to demonstrate a reasonable possibility that the audio recordings would have changed the outcome of the proceedings.

People v Resto, 2017 NY Slip Op 00780 (2/3/17) – The Court rejected defendant’s contention that the trial court abused its discretion in denying her request for an adjournment to allow defense counsel to engage in a further review of Rosario material in preparation for trial. The trial court’s exercise of discretion in denying a request for an adjournment will not be overturned absent a showing of prejudice. Here, the court denied defendant’s request for an adjournment upon determining that the People had provided defense counsel with unredacted copies of the Rosario material a week before trial and that defense counsel would be afforded additional time to prepare until the following day after the early completion of jury selection. Defendant made no showing that she was prejudiced by the court’s ruling.

Grand Jury

Court of Appeals

First Department

1st Quarter 2017

People v Minor, 2017 NY Slip Op 01786 (3/9/17) – In affirming defendant’s Manslaughter 2° conviction (by plea entered after Murder 2° trial conviction was reversed on appeal), the First Department rejected his assertion that prosecutorial misconduct had fatally tainted the indictments.

“Under the law of the case doctrine [citation omitted], this Court’s prior decision (111 AD3d 198 [1st Dept 2013]) bars defendant’s contentions that the [trial] court improperly denied his motion to compel the People to resubmit the entire case to a new grand jury, and permitted [sic] prosecutorial misconduct in the first grand jury proceeding. Moreover, there was no taint of prosecutorial misconduct in the original indictment charging intentional murder, in the second indictment charging second-degree manslaughter by assisting a suicide [Penal Law § 125.25(1)(b)], or in the consolidation of the two indictments.
Unlike the situation in People v Pelchat (62 NY2d 97 [1984]), there was no ‘false’ grand jury testimony. Upon reaching the conclusion that, notwithstanding circumstantial evidence of robbery presented in good faith to the first grand jury, defendant did not in fact rob the victim, the People abandoned the robbery theory and those counts of the original indictment based thereon, leaving in place the count of second-degree murder not based on robbery.
As explained in our prior opinion (111 AD3d at 203), the underlying evidence presented the alternative scenarios that defendant either committed intentional murder (at the request of the deceased, who wished to die), or second-degree manslaughter by assisting a suicide. After our reversal and remand based on an error in the court’s charge, the People acted within their discretion in obtaining a second indictment charging only assisted-suicide manslaughter, without re-presenting the murder charge, and the court properly consolidated the two indictments, which were ‘based upon the same act or upon the same criminal transaction’ [citations omitted]. Furthermore, there was nothing legally defective about an indictment, consolidated or otherwise, containing these two types of homicide.”

Second Department

Third Department

Fourth Department

1st Quarter

People v White, 2017 NY Slip Op 01070, 147 AD3d 1492 (2/10/17) – Defendant appealed from a judgment convicting him, following a bench trial, of robbery in the first degree and robbery in the second degree, contending that he was deprived of his right to testify before the grand jury and that County Court thus erred in denying his motion to dismiss the indictment pursuant to CPL 190.50(5)(c) and CPL 210.35(4). The Fourth Department agreed, concluding that the request to appear before the grand jury was timely filed. It is of no moment under the statute that defendant’s request to testify was not received until the day after the grand jury had voted to issue an indictment and several days after the deadlines set forth in the two grand jury notices given by the People to defendant. As the Court of Appeals has noted, a defendant has a right “under CPL 190.50(5)(a) to provide notice and, therefore, the concomitant right to give testimony even perhaps after an indictment has been voted but before it is filed” (People v Evans, 79 NY2d, 407, 414). Where, as here, defendant’s request to testify is received after the grand jury has voted, but before the filing of the indictment, defendant is entitled to a reopening of the proceeding to enable the grand jury to hear defendant’s testimony and to revote the case, if the grand jury be so advised.

People v Graham, 2017 NY Slip Op 02175 (3/24/17) – Defendant contended that reversal was required because the integrity of the grand jury proceeding was impaired because the prosecutor failed to instruct the grand jury concerning the defense of temporary innocent possession of a weapon. The Fourth Department agreed and dismissed the counts on which defendant was convicted, without prejudice to represent. The prosecutor is required to instruct the grand jury on the law with respect to matters before it (see CPL 190.25 [6] ). If the prosecutor fails to instruct the grand jury on a defense that would eliminate a needless or unfounded prosecution, the proceeding is defective, mandating dismissal of the indictment (see CPL 210.35[5]; People v Valles, 62 NY2d 36, 38–39). Under the circumstances of this case, an instruction on the defense of temporary and lawful possession was warranted, and the prosecutor’s failure to provide that instruction impaired the integrity of the grand jury proceeding.

People v Roach, 147 AD3d 1423, 2017 NY Slip Op 00872 (2/3/17) – The Court rejected defendant’s contention that Supreme Court erred in denying that part of his motion to dismiss the indictment with respect to the count charging CPW on the ground that the grand jury proceedings were defective because the prosecutor failed to instruct the grand jury on the defense of justification (see Penal Law § 35.15). Although defendant testified before the grand jury that he possessed the machete to protect himself and his girlfriend from the man at defendant’s apartment, who had a board with nails in it, it is well established that, “[b]ecause the possession of a weapon is distinct from the use of such weapon, ‘there are no circumstances when justification … can be a defense to the crime of criminal possession of a weapon’ ” (People v Cohens, 81 AD3d 1442, 1444, quoting People v Pons, 68 NY2d 264, 267). Defendant failed to make a pretrial motion to dismiss the count of the indictment charging him with resisting arrest on the ground that the prosecutor failed to instruct the grand jury on the defense of justification, and thus his challenge to that count of the indictment is not preserved for review and is without merit.

People v Butler, 2017 NY Slip Op 02186 (3/24/2017) – Defendant contends that the grand jury proceedings were defective because the prosecutor failed to disclose evidence favorable to the defense prior to the grand jury proceeding or present that evidence to the grand jury. The Court rejected that contention inasmuch as the allegedly favorable evidence was not entirely exculpatory (People v Gibson, 260 AD2d 399), and the failure to disclose that evidence or present it to the grand jury did not result in a needless or unfounded prosecution (People v Smith, 289 AD2d 1056, 1057 [internal quotation marks omitted] ).

People v Konovalchuk, 2017 NY Slip Op 02174 (3/24/17) – Defendant contended that counsel was ineffective in failing to seek a ruling from the court on that part of defendant’s omnibus motion seeking dismissal of the indictment alleging that the grand jury proceedings were defective on the ground that the prosecutor failed to notify the grand jury of defendant’s request pursuant to CPL 190.50(6) to call certain witnesses. Defendant failed, however, to provide a sufficient record to enable the appellate court to review his contention (see People v Hawkins, 113 AD3d 1123, 1125).

Voir Dire

Court of Appeals

First Department

1st Quarter 2017

People v Hovan, 2017 NY Slip Op 00131 (1/10/17) – Upheld the trial court’s denial of defendant’s Batson application. “There is no basis to disturb the court’s credibility determinations that the nondiscriminatory explanations for the challenges at issue were not pretextual, a finding that is supported by the record and entitled to great deference [see People v Hernandez, 75 NY2d 350 (1990), affd 500 U.S. 352 (1991)].

Second Department

1st Quarter 2017

People v Khan, 2017 NY Slip Op 00189 (1/11/17) – “The County Court erred in finding that the defendant’s Batson application (see Batson v Kentucky, 476 US 79 [1986]) was untimely. A Batson challenge is timely where it is made prior to the commencement of trial, as was done here (see People v Scott, 70 NY2d 420, 425 [1987]; People v Ramirez, 295 AD2d 542 [2002]; People v Campos, 290 AD2d 456, 457 [2002]). The defendant properly preserved for appellate review his contention as to the allegedly improper use of peremptory challenges by the People (see People v Ramos, 91 AD3d 674 [2012]; People v Davis, 253 AD2d 634, 635 [1998]). However, the defendant failed to meet his prima facie burden of setting forth facts supporting an inference of discrimination (see People v Hecker, 15 NY3d 625, 653 [2010]; People v Green, 141 AD3d 1036 [2016]; People v Fryar, 29 AD3d 919, 920-921 [2006]).”
People v Sydoriak, 2017 NY Slip Op 00671 (2/1/17) – “The defendant’s Batson challenge (see Batson v Kentucky, 476 US 79) was properly denied, as he failed to make the requisite prima facie showing of discrimination. It is incumbent upon a party making a Batson challenge to articulate and develop all of the grounds supporting the claim, both factual and legal, during the colloquy in which the objection is raised and discussed . . . In support of the Batson application, the defendant noted only that the prosecutor used challenges against several female prospective jurors. In the absence of a record demonstrating other circumstances supporting a prima facie showing, the Supreme Court properly determined that the defendant failed to establish a pattern of purposeful exclusion sufficient to raise an inference of discrimination (see People v Valdez-Cruz, 99 AD3d at 738-739; People v Scott, 70 AD3d 977; People v Fryar, 29 AD3d 919). Since the defendant failed to establish a prima facie case of discrimination, the court did not err in failing to require the prosecutor to provide a gender-neutral explanation for her challenges to certain female prospective jurors (see People v Childress, 81 NY2d at 268; People v Valdez-Cruz, 99 AD3d at 738-739; People v Scott, 70 AD3d 977; People v Fryar, 29 AD3d 919; People v Thomas, 210 AD2d 515).”

Third Department

Fourth Department

1st Quarter

People v Switts, 2017 NY Slip Op 02226 (3/24/17) – The trial court did not err in denying defendant’s Batson application concerning the People’s use of a peremptory challenge to excuse the sole Asian–American prospective juror. The prosecutor gave race-neutral reasons for excluding that prospective juror, i.e., her body language, her disclosure that her stepdaughter had a conviction from a neighboring county, and her performance of work for the court’s law clerk, and defendant did not meet his ultimate burden of establishing that those reasons were pretextual.

Opening

Court of Appeals

First Department

Second Department

Third Department

Fourth Department

1st Quarter

People v Vanalst, 2017 NY Slip Op 02273 (3/24/17) – By agreeing that the use of his nickname “Jungle” was not unduly prejudicial, defendant waived his contention that County Court erred in permitting the prosecutor to refer to defendant by that nickname in his opening statement. Defendant failed to object to the use of his nickname by the informant witnesses or to seek a curative instruction and thus failed to preserve for review his contention that the use of that name was unduly prejudicial.

Direct

Court of Appeals

First Department

1st Quarter 2017

People v Joe, 2017 NY Slip Op 00384 (1/19/17) – Victim did not testify at Joe’s trial for attempted murder. First Department rejected, inter alia, the argument that Joe was entitled to a new trial because the victim’s photograph was received into evidence as a People’s Exhibit.

“We agree with defendant that the admission of the photograph of Barry served no practical purpose, and that the court properly declined to admit it for the proffered purpose of permitting a comparison between Barry’s skin color and defendant’s. However, to the extent that the court admitted it to satisfy any desire the jury may have had to visualize the nontestifying victim, it was harmless error. It is widely recognized that in a homicide case, it is prejudicial to place a picture of the deceased before the jury in a case with less than overwhelming evidence of guilt, since doing so can ‘inflame the jury’s emotions and…introduce into the trial an impermissible sympathy factor” [People v Donohue, 229 AD2d 396, 398 (2nd Dept 1996)]. Indeed, each of the cases cited by defendant is a homicide case. Here, Barry was alive when the case was tried. Had he come to court to testify, certainly the defense could not have been heard to argue that his presence in the courtroom would have had a prejudicial impact on the jury. Further, even though Barry was seriously wounded, the picture shown to the jury was not one showing him performing an activity he might no longer be able to engage in since he was shot. Rather, it was an innocuous headshot. Accordingly, it could not have elicited feelings of sympathy so strong as to dispose the jury to convicting defendant.”

People v Johnson, 2017 NY Slip Op 01659 (3/7/17) – “The [trial] court providently permitted the People to impeach the witness with his grand jury testimony, because his trial testimony on cross- and redirect examination was not merely unhelpful or limited to inability to recall, but was affirmatively damaging to the People’s case [see CPL 60.35(1); People v Winchell, 98 AD2d 838, 841 (3rd Dept 1983), affd 64 NY2d 826 (1985)]. Furthermore…, the prosecutor’s summation comments did not treat the grand jury testimony as evidence in chief.”

Second Department

1st Quarter

People v Hale, 2017 NY Slip Op 01229 (2/15/17) – “The prosecutor’s elicitation of testimony from a detective as to the statements of a witness who testified earlier in the trial was not improper bolstering and did not call for hearsay because the testimony was offered for nonhearsay purposes (see People v Arroyo, 128 AD3d 843, 844-845).”

Third Department

1st Quarter 2017

People v Every, 2017 NY Slip Op 00347 (1/19/17) – Court rejected the defendant’s argument that the prosecutor’s direct examination of the officers who interviewed him post-arrest “improperly suggested that defendant had a duty to retreat in his own home by eliciting testimony…to the effect that [Every] admitted that he could have avoided the confrontation by going to a nearby relative’s home, putting down the knife or leaving the house.”

“This testimony was…highly probative as to whether [Every] reasonably believed that he was facing imminent danger of deadly physical force, and whether the nature and extent of the force used was reasonable under the circumstances. ‘The evidence of alternatives was admissible since it was relevant to the reasonableness of defendant’s perceptions and not to the question of whether defendant was obligated to retreat’ [quoting from People v Emick, 103 AD2d 643, 658 (3rd Dept 1984)].”

People v Bautista, 2017 NY Slip Op 01410 (2/23/17) – Although “the prosecutor tended to lead her witnesses and repeat questions, many of defendant’s objections were sustained and, notwithstanding defendant’s failure to request a curative instruction County Court instructed the jury that questions were not evidence and to ignore the question if an objection was sustained.”

People v Gaston, 2017 NY Slip Op 01411 (2/23/17) – Third Department reversed and ordered a new trial, largely because of the prosecutor’s impeachment, with prior inconsistent statements, of a key People’s witness. Gaston was not the lawful tenant of the apartment where the heroin was seized, nor was he present at the time of the search. The People anticipated — based upon his written statement to investigators and his grand jury testimony — that one Samuel Abellman would be among the witnesses who would establish that Gaston was in constructive possession of the heroin. At defendant’s trial, however, Abellman denied knowing Gaston, testified that he had never purchased drugs from Gaston, and did not recall ever having been to the “stash house” apartment. The prosecutor successfully argued, outside the presence of the jury, that CPL 60.35(1) authorized the use of Abellman’s earlier statements as impeachment material. Consequently, upon the jurors’ return to the courtroom, the prosecutor “extensively questioned Abellman regarding his prior statements by asking if he recalled previously saying, among other things, that defendant supplied him with heroin and that he and defendant frequently went to the apartment to bag heroin and cocaine for sale.” The Appellate Division court deemed this to be error, not sufficiently cured by the trial court’s limiting instruction.

“While ‘[e]vidence of a prior contradictory statement may be received for the limited purpose of impeaching [a] witness’s credibility with respect to his or her testimony,’ it is inadmissible where “the testimony of the witness does not tend to disprove the position of the party who called him [or her] and elicited [the contradictory] testimony’ [quoting from People v Berry, 27 NY3d 10, 17 (2016), which quoted CPL 60.35(3)]. Abellman’s trial testimony falls into the latter category, as he did not call defendant’s connection to the heroin into question and only maintained that he had no knowledge of whatever connection there might be. This claimed lack of knowledge ‘merely failed to corroborate or bolster the [People]’s case’ and did not affirmatively “contradict or disprove” evidence presented by them [citations omitted]. The People should not, as a result, have been permitted to impeach Abellman with his prior statements under CPL 60.35.”
“County Court correctly instructed the jury that the out-of-court statements by Abellman were only to be used for impeachment purposes and did not constitute evidence of defendant’s guilt. That being said, the People had already detailed in their opening statement the ties between defendant and the heroin that they expected Abellman’s testimony to reveal. Abellman was improperly impeached with his prior statements when he deviated from those expectations and, in the summation, the prosecutor emphasized the prior statements that ‘Abellman didn’t remember.’ ‘It is apparent that [the People’s] argument depends for its meaning on having the jury infer not only that the purported inability to recall was not credible, but also that” Abellman’s prior statements regarding defendant’s ties to the heroin were true [People v Hickman, 148 AD2d 937, 938 (4th Dept 1989), aff’d for reasons stated below, 75 NY2d 891 (1990)]. In light of the circumstantial nature of the People’s case and their improper use of Abellman’s prior statements, the error in permitting the impeachment prejudiced defendant and was not harmless [citations omitted]. Despite the absence of a timely objection to the improper impeachment and the limiting instruction subsequently given by County Court, the interest of justice demands that we reverse and remit for a new trial [citations omitted].”

People v Ruiz, 2017 NY Slip Op 01594 (3/2/17) – Although defense counsel’s preceding cross-examination of the witness “may well have rendered [such] redirect examination appropriate,” the prosecutor did not first seek permission from the trial judge before undertaking redirect examination of defendant’s accomplice (a People’s witness) that elicited testimony which violated the court’s pretrial Molineux ruling. But “County Court gave an ameliorative instruction to the jury that cured any prejudice [see People v Khan, 127 AD3d 1250, 1252 (3rd Dept 2015)].”

Fourth Department

1st Quarter

People v Vanalst, 2017 NY Slip Op 02273 (3/24/17) – Defendant failed to object to the use of his nickname (Jungle) by the informant witnesses or to seek a curative instruction and thus failed to preserve for review his contention that the use of that name was unduly prejudicial. In any event, the witnesses knew defendant only by that nickname before learning his legal name while working with the police, and thus it was permissible for the People to elicit testimony regarding the nickname at trial for identification purposes. By failing to object to any of the instances that defendant contends constitute prosecutorial misconduct he failed to preserve for review his contention that he was denied a fair trial by prosecutorial misconduct.

People v Resto, 147 AD3d 1331, 2017 NY Slip Op 00780 (2/3/17) – Contrary to defendant’s contention, she was not denied a fair trial by the testimony of a former defense attorney, on direct examination by the prosecutor, that he had previously represented defendant in a felony criminal matter in which she was charged with criminal possession of a controlled substance in the third degree. The court struck that testimony in response to defendant’s objection and gave curative instructions that were sufficient to alleviate any prejudice.

Cross-examination

Court of Appeals

First Department

Second Department

Third Department

1st Quarter 2017

People v Bautista, 2017 NY Slip Op 01410 (2/23/17) – Bautista’s contention that he and another defense witness were improperly questioned as to Bautista’s national origin and understanding of the English language was not preserved for appellate review by objection at trial. “In any event, the prosecutor’s brief exploration of these topics was warranted, given that defendant claimed to have mistaken the victim for a woman who had persecuted his family in his hometown [in Mexico] and [also] asserted that he took too much cold medicine before the attack because he could not read the dosage instructions [citing to, e.g., People v Lewis, 46 AD3d 943, 946 (3rd Dept 2007)].”

Fourth Department

Summation

Court of Appeals

First Department

1st Quarter 2017

People v Hovan, 2017 NY Slip Op 00131 (1/10/17) – First Department found no merit in defendant’s complaint about the prosecutor’s closing argument: “The portion of the prosecutor’s summation to which defendant objected on the ground of vouching constituted permissible comment on a credibility issue [see People v Overlee, 236 AD2d 133, 144 (1st Dept 1997)].”

People v Valenzuela, 2017 NY Slip Op 00543 (1/26/17) – “While the statement that ‘[t]here is no psychiatrist testimony in this case’ was improper, given the People’s agreement to permit defendant to assert the defense without expert testimony, any prejudice was cured by the court’s jury instruction.”

People v Nunez, 2017 NY Slip Op 00732 (2/2/17) – “The prosecutor’s remarks in summation fell within the broad bounds of rhetorical comment permissible in closing argument [see People v Galloway, 54 NY2d 396, 399 (1981)]. The People were entitled to argue that their case was strong, that defendant’s testimony was incredible, and that defendant’s status as an interested witness was one of the factors affecting his credibility. Nothing in the People’s phrasing of these arguments was so inflammatory as to warrant reversal.”

People v Everette, 2017 NY Slip Op 01962 (3/16/17) – Defendant’s arguments regarding the People’s summation were unpreserved. As an alternative holding, “People’s arguments on the common modus operandi of the two crimes were permissible.”

Second Department

1st Quarter

People v Williams, 2017 NY Slip Op 01238 (2/15/17) — “The defendant’s contention that certain remarks made by the prosecutor during summation deprived him of a fair trial is, for the most part, unpreserved for appellate review, since he failed to object to most of the remarks at issue (see CPL 470.05[2]; People v Romero, 7 NY3d 911, 912; People v Williams, 123 AD3d 1152, 1154, lv granted 25 NY3d 1173; People v Martin, 116 AD3d 981, 982; People v Stewart, 89 AD3d 1044, 1045). In any event, although some of the prosecutor’s remarks improperly appealed to the jury’s fears and passions with regard to drug dealing (see People v Davis, 256 AD2d 474, 474; People v Hill, 193 AD2d 619; People v Odle, 187 AD2d 536, 537), they were not so flagrant or pervasive as to deprive the defendant of a fair trial (see People v Forde, 140 AD3d 1085, 1086; People v Thompson, 125 AD3d 899, 900; People v Ward, 106 AD3d 842). Contrary to the defendant’s further contention, under the circumstances of this case, the prosecutor’s highlighting of certain evidence admitted at the trial through the use of slides as visual aids during summation was not error (see People v Santiago, 22 NY3d 740, 750; People v Berry, 110 AD3d 1002, affd 27 NY3d 10; People v Tiro, 100 AD3d 663).”
People v Casiano, 2017 NY Slip Op 02053 (3/22/17) — “The defendant correctly asserts that the cumulative effect of the prosecutor’s improper comments during summation requires a new trial. . . . Here, during summation, the prosecutor repeatedly engaged in improper conduct. For instance, the prosecutor vouched for the credibility of the People’s witnesses with regard to significant aspects of the People’s case by asserting, inter alia, that ‘the witnesses who came before you provided truthful testimony that makes sense,’ that they gave the ‘kind of truthful and credible testimony that you can rely on,’ and that one witness had ‘no reason . . . to be anything but truthful with the 911 operator’ (see People v Redd, 141 AD3d 546, 548; People v Spence, 92 AD3d 905, 905-906; People v Brown, 26 AD3d 392, 393). In describing a complainant, the prosecutor asserted that he was ‘exactly what you hoped to see from someone who had troubles with the law in their youth,’ but had ‘changed [his] life” and now worked at an organization that helps “low-income people [obtain] health care,’ which was a clear attempt to appeal to the sympathy of the jury (see People v Smith, 288 AD2d 496, 497; see also People v Anderson, 83 AD3d 854, 856). To support the credibility of that same complainant, the prosecutor injected the integrity of the District Attorney’s office into the trial to downplay the severity of a past criminal charge he faced (see People v Carter, 40 NY2d 933, 934; People v Morgan, 111 AD3d 1254, 1256). Further, the prosecutor denigrated the defense and undermined the defendant’s right to confront witnesses by implying that the complainants were victims of an overly long cross-examination and that one was a ‘saint’ for answering so many questions . . . Moreover, the prosecutor improperly used the defendant’s right to pretrial silence against him by arguing that he could not be a victim as he did not call 911 (see People v De George, 73 NY2d 614, 618). The cumulative effect of these improper comments deprived the defendant of a fair trial . . .”
People v Labossiere, 2017 NY Slip Op 02446 (3/29/17) — “The defendant’s contention that he was deprived of a fair trial by the prosecutor’s misstatement, during summation, of the law concerning an initial aggressor is without merit. The comment could not have been interpreted by the jury as an instruction on the law because the Supreme Court reminded the jury that it would define the law and subsequently gave a correct instruction on the law (see People v Cephas, 91 AD3d 668, 669; People v Torres, 90 AD3d 420; People v Giuca, 58 AD3d 750). Thus, the defendant was not prejudiced by the comment. The defendant’s remaining challenges to comments made by the prosecutor during summation are not preserved for appellate review (see CPL 470.05[2]; People v Romero, 7 NY3d 911). In any event, most of the challenged remarks were fair comment on the evidence (see People v Ashwal, 39 NY2d 105, 109-110). Although certain of the challenged comments were improper (see People v Gordon, 50 AD3d 821; People v Pagan, 2 AD3d 879; People v Torres, 111 AD2d 885), they were not so egregious as to deprive the defendant of a fair trial (see People v Alphonso, 144 AD3d 1168; People v Ward, 106 AD3d 842).

Third Department

1st Quarter 2017

People v Every, 2017 NY Slip Op 00347 (1/19/17) – Every sought to convince the Third Department that he had been denied the effective assistance of counsel owing to his trial attorney’s failure to object to certain aspects of the prosecutor’s summation. In rejecting this claim, the Third Department

  • first found that it was not improper for the prosecutor to comment — at this trial where defendant had raised the defense of justification — “on the alternatives available to defendant”
  • characterized the remarks concerning the credibility of a key prosecution witness as “fair responses to suggestions in the defense’s summation that [the witness’s] testimony was inconsistent and incredible, and did not constitute improper vouching [see People v Wlasiuk, 136 AD3d 1101, 1103 (3rd Dept 2016)”
  • concluded that the few other unpreserved comments would not have prompted reversal had they been preserved for appellate review by trial counsel’s objections: “even if better left unsaid, [these] ‘did not rise to the flagrant and pervasive level of misconduct which would deprive defendant of due process or a fair trial’ [People v Heiserman, 127 AD3d 1422, 1424 (3rd Dept 2015)].”

People v Bautista, 2017 NY Slip Op 01410 (2/23/17) – “To the extent that the prosecutor improperly commented on the victim’s medical records, any such error was harmless inasmuch as the records were solely relevant to charges of which defendant was ultimately acquitted [citing to People v Perkins, 24 AD3d 890, 891 (3rd Dept 2005), and People v Baker, 4 AD3d 606, 608-609 (3rd Dept 2004).”

People v James, 2017 NY Slip Op 01409 (2/23/17) – Conviction reversed because of flawed jury charge re circumstantial evidence that could not be deemed harmless error because the evidence of the defendant’s guilt was not overwhelming. Although James’ pro se claim of prosecutorial misconduct was accordingly “academic,” the Third Department concluded its decision by noting:

“While the bulk of the prosecutor’s comments relative to the blood found on the victim’s vehicle and the import of the resulting DNA match to defendant constituted fair comment upon the evidence, the prosecutor exceeded the bounds of permissible commentary when, during the course of his summation, he told the jury, ‘[Y]ou know that the blood [on the victim’s car] belongs to the robber’.”

Fourth Department

1st Quarter

People v Resto. 2017 NY Slip Op 00780 (2/3/17) – Defendant failed to preserve for review all but one of her present objections to alleged instances of prosecutorial misconduct on summation and, in any event, the Court concluded that any improprieties were not so pervasive or egregious as to deprive defendant of a fair trial.

People v Vanalst, 2017 NY Slip Op 02273 (3/24/17) – Even assuming, arguendo, that certain remarks the prosecutor made during his opening statement or summation were improper, any improprieties were not so pervasive or egregious as to deprive defendant of a fair trial. The Court further concluded that he was provided with meaningful representation. Defendant failed to allege the absence of any strategic or other legitimate reason for defense counsel’s alleged failure to seek a curative instruction regarding the use of defendant’s nickname, or to object during the prosecutor’s summation, which largely responded to the defense summation that vehemently attacked the credibility of the People’s witnesses.

People v Tyler, 2017 NY Slip Op 00878 (3/3/17) – By failing to object to any of the instances of claimed prosecutorial misconduct during the prosecutor’s opening statement, in certain testimony that was elicited, and during summation, he failed to preserve for review his contention that he was denied a fair trial by prosecutorial misconduct (see CPL 470.05[2]; see generally People v. Machado, 144 AD3d 1633, 1635). Even assuming, arguendo, that certain remarks the prosecutor made during his opening statement or summation were improper,any improprieties were not so pervasive or egregious as to deprive defendant of a fair trial. Contrary to defendant’s contention, the Court concluded that he was provided with meaningful representation. Defendant failed to allege the absence of any strategic or other legitimate reason for defense counsel’s alleged failure to seek a curative instruction regarding the use of defendant’s nickname, or to object during the prosecutor’s summation, which largely responded to the defense summation that vehemently attacked the credibility of the People’s witnesses.

People v Morgan, 2017 NY Slip Op 02212 (3/24/2017) – Defendant failed to preserve his contention that he was denied a fair trial by prosecutorial misconduct on summation to the extent that he alleges that the prosecutor improperly vouched for the victim’s credibility and denigrated the defense. With respect to defendant’s contention that the prosecutor engaged in misconduct by mischaracterizing the evidence on summation, the Court concluded that the prosecutor’s statement on summation was isolated, and the court’s instructions during the jury charge ameliorated any prejudice to defendant.

People v Hulme, 2017 NY Slip Op 01090 (3/10/17) – Defendant’s contentions, including that the prosecutor’s comments during summation deprived him of a fair trial and that his conviction is not supported by legally sufficient evidence, are barred by his valid waiver of the right to appeal.

People v Strauss, 2017 NY Slip Op 00873 (3/3/17) – Defendant did not preserve his contention that he was deprived of a fair trial by prosecutorial misconduct on summation and, in any event, the Court concluded that the prosecutor’s remarks constituted fair comment upon the evidence or fair response to the summation of defense counsel.

People v Nance, 2017 NY Slip Op 02198 (3/24/17) – Defendant failed to preserve his contention that he was deprived of a fair trial by prosecutorial misconduct during summation inasmuch as he failed to object to the alleged misconduct. In any event, any impropriety was not so pervasive or egregious as to deprive defendant of a fair trial.

People v Sanford, 2017 NY Slip Op 02207 (3/24/17) – Defendant conceded that his contention that he was denied a fair trial by prosecutorial misconduct on summation was not preserved inasmuch as no objection was made to the allegedly improper remarks.

Conflict of Interest-Appearance of Impropriety

Court of Appeals

First Department

Second Department

Third Department

1st Quarter 2017

People v Durham, 2017 NY Slip Op 01732 (3/9/17) − County Court properly denied defense motion to disqualify the District Attorney’s Office because an ADA had represented Durham in an unrelated criminal matter back in 2010.

“Ordinarily, the removal of a public prosecutor is appropriate only where the defendant shows ‘actual prejudice arising from a demonstrated conflict of interest or a substantial risk of an abuse of confidence’ [People v Adams, 20 NY3d 608, 612 (2013); internal punctuation and other citations omitted]. Here, the Assistant District Attorney was not employed by the District Attorney’s office until after defendant was indicted on the current charges, and the People assured County Court that he had no involvement with the current prosecution. Although the People were permitted to elicit testimony regarding the 2010 matter as evidence of a lack of mistake, our review of the record confirms that none of the information elicited ‘indicated that any abuse of confidence or use of privileged information had occurred’ [People v Arbas, 85 AD3d 1320, 1322 (3rd Dept 2011]; see also People v Zinkhen, 89 AD3d 1319, 1320 (3rd Dept 2011)].”

 

Disciplinary & Other Proceedings/Sanctions

Matter of Sanchez, 2017 NY Slip Op 01869 (3/15) — Attorney was suspended for one year, reciprocal discipline to what had already been ordered in Oregon. The attorney initially certified that he had completed 48 hours of video CLE courses in one day, with all of the certificates printed within a 7 hour period. When confronted by the MCLE administrator from the Oregon bar, the attorney then changed his story and claimed he had begun watching the courses earlier. A disciplinary trial was held, and the panel held: “the [respondent] made his misrepresentations knowingly and intentionally. The [respondent] was provided multiple opportunities to explain how he could have possibly fit 48 hours of work into a shorter (and potentially significantly shorter) period of time and each time he failed to do so. It is clear he changed the facts over time, [and] added explanations’ when prior ones were not accepted, with each subsequent explanation less plausible than the prior.” He was suspended for one year by the Oregon Supreme Court. The Appellate Division imposed reciprocal discipline.

Other News

New York

New Rules for Attorney Disciplinary Matters

Beginning on October 1, 2016, New York implemented new rules for attorney disciplinary matters. In an article by Hal R. Lieberman, formerly chief counsel to the Departmental Disciplinary Committee (First Department), some of these new rules are discussed. He addresses: (1) formal proceedings, described in the uniform rules as “Proceedings in the Appellate Division;” and, (2) informal proceedings, which the new rules refer to as “Proceedings Before Committees.” Additionally, he covers some highlights of “related proceedings” under the new regime, i.e., diversion, interim suspension, criminal convictions, collateral estoppel, and reinstatements.

Judge Censured for Conduct During Murder Trial

In a written opinion, the New York State Commission on Judicial Conduct censured Judge James J. Piampiano of Monroe County for his behavior during a high profile murder case. The Commission found that the judge improperly gave statements to the press that “went well beyond general explanations of the law,” and which “could convey an appearance that respondent viewed the defendant sympathetically, raising doubts about his impartiality and thus undermining public confidence in the impartial administration of justice.”

Further, the Commission found that the judge improperly “threaten[ed] to have the prosecutor placed in handcuffs and put in jail when the attorney asked to speak as respondent was announcing his decision on the defense motion to dismiss” — even though ” the prosecutor was simply doing his job.”

In this case, People v Charlie Tan, the court granted the defendant’s motion for a trial order of dismissal one month after a mistrial was declared due to a hung jury. The Monroe County District Attorney’s Office appealed the decision to the Appellate Division, Fourth Department.
Former Kings County ADA Charged With Illegally Wiretapping Cellular Telephones

A former Kings County ADA, Tara Lenich, was indicted in the Easter District of New York for illegally intercepting oral and electronic communications occurring over two cellular telephones. She allegedly forged the signatures of multiple New York State judges onto the illicitly created judicial orders — orders that purportedly authorized the Kings County District Attorney’s Office to intercept communications occurring over two cellular telephones. Lenich then misappropriated KCDA equipment to intercept, monitor, and record the communications to and from the two cellular telephones. In furtherance of her scheme, Lenich also allegedly created fraudulent search warrants, which she then used to unlawfully obtain text messages relating to the two cellular telephones.

Lenich was arrested in November 2016 and ultimately fired by the Kings County District Attorney’s Office.

Around the U.S.

1st Quarter 2017

California

The State Bar of California filed ethics charges against a former prosecutor, alleging that he committed misconduct during his handling of a death penalty case over thirty years ago.

In 2016, a federal judge cited prosecutorial misconduct in overturning the defendant’s murder conviction and death sentence; the California State Bar’s Office of Chief Trial Counsel then reviewed the case. The disciplinary charges against the former prosecutor include allegations that he committed Brady violations by hiding the name and identity of a witness to the murder, and that he failed to correct testimony that he knew to be false at a pretrial hearing and at the trial.
Florida

The Fifth District of Florida’s Court of Appeal reversed Marco Rodriguez’s convictions for child sexual molestation because “there is no doubt that [he] was denied a fair trial due to egregious prosecutorial misconduct, compounded by defense counsel’s unexplained failure to object” to any aspect of the prosecutor’s closing argument in rebuttal. The prosecutor, inter alia, repeatedly branded the defendant a pedophile and a liar; called upon the jury to deliver justice for the victim by returning a guilty verdict; and misstated evidence – most notably, he repeatedly asserted that the defendant “had admitted to several specific inappropriate sexually-related activities with the victim, when in fact [Rodriguez] had consistently, repeatedly denied them.” In sum, “[t]he flood of improper prosecutorial comments in closing argument in this case was deep, wide, and unrelenting; it made a mockery of the constitutional guarantee of a fair trial.”

In addition to ordering a new trial, the appellate panel directed its court clerk to forward copies of its February 20, 2017 opinion and the trial transcript to the Florida Bar for possible disciplinary action.
Illinois

An Illinois attorney, John L. Steele, pleaded guilty in federal court to conspiracy to commit mail fraud and wire fraud and conspiracy to commit money laundering, relating to a scheme in which Steele, and a second attorney, obtained the copyrights to pornographic movies, uploaded them to file-sharing services on the Internet, and then filed bogus copyright infringement lawsuits against people who downloaded the films.

According to Steele’s admissions in his plea, he and his accomplice created sham entities to obtain the copyrights to the films, and then filed lawsuits against the downloading parties in which they hid their status as copyright holder, as well as their part in spreading the films online. Moreover, Steele and his accomplice used “extortionate tactics” to threaten dowloaders with enormous financial penalties and public embarrassment unless they paid settlement fees.
Indiana

♦ By order dated January 13, 2017, the Indiana Supreme Court publicly reprimanded Keith A. Henderson, the elected Franklin County Prosecutor, for having violated provisions of Indiana’s Rules of Professional Conduct concerning an attorney’s conflicts of interest with a current client and arising from literary rights.
In a nutshell: Mr. Henderson — who personally prosecuted David Camm for the murders of Camm’s wife and two children — entered into written agreements, first with a literary agent and then a publisher, concerning a book that Henderson would write about the murder investigation, the initial trial and retrial, public interest, and Henderson’s thoughts on the matter. The book publisher pulled the plug on the project, after Henderson asked for more money and a delay in publication (and the due date for the initial, complete manuscript) because Camm’s second judgment of conviction had been reversed. Nonetheless, the Indiana Court of Appeal thereafter ruled that a special prosecutor should be appointed to take over the renewed prosecution of Camm (who was then acquitted at the 3rd trial in 2013). After summarizing the pertinent facts & the testimony and evidence adduced at the hearing in the trial court, that court concluded that the fact there was no longer a contract was not dispositive.

“Henderson has [demonstrated] a personal agenda to both write this book and ensure that Camm is prosecuted. Henderson’s own words are evidence of that agenda. In his email to his literary agent following reversal, Henderson stated: ‘I am committed to writing the book as is Damon. A tremendous amount of work has been done to this point. It’s a great story that needs to be told…. In addition, as you and Damon have discussed, this is now a bigger story.” And, in a statement to the media [after Camm filed his petition for the appointment of a special prosecutor], Henderson wrote that he was ‘more convinced now than ever that when this matter is completed, the unedited version of events needs to be told’.”
“As prosecutor, Henderson should not have a personal interest in this case separate from his professional role as prosecutor. In other words, Henderson cannot be both committed to writing a book about the Camm case and serve as prosecutor. Such a personal interest creates an actual conflict of interest with his duties as prosecutor. * * * This conflict has and will undercut his ability to represent their interest in a just and fair trial due to issues created by him that did previously not exist. Cancellation of the contract does little to obviate Henderson’s personal interest; and ‘[t]he public trust in the integrity of the judicial process requires us to resolve any serious doubt in favor of disqualification.’ Thus, we find that the trial court erred in denying Camm’s petition for a special prosecutor.”
— Camm v State, 957 NE2d 205, 210-11 (Indiana Ct of App 2009) [record and case citations omitted].

In determining what, if any, disciplinary action should be taken, the Indiana Supreme Court reviewed the August 2016 report from the judicial hearing officer, the record of the hearing, and the recent briefs from Henderson’s attorneys and counsel for the Disciplinary Commission. The Court agreed with the hearing officer that (a) the County Prosecutor had violated the conflict of interest Rules specified in Count 1 of the complaint, but (b) there was insufficient evidence that the vouchers he submitted to the County, for reimbursement of legal fees related to the conflict-grievance litigation, were “fraudulent or deceitful.”

The Court declined to suspend Mr. Henderson, the recommendation of the Disciplinary Commission. Because the “misconduct occurred in connection with a single, unusual case and is an aberration from what otherwise has been a long and distinguished career as a public servant, we conclude a suspension is not warranted in this case.”

♦ Some two months later (March 24, 2017), the Indiana Supreme Court issued a public reprimand of another elected County Prosecutor, Bradley D. Collins of Jackson County, for having violated Professional Conduct Rule 8.2(a), which prohibits making a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge. On November 20, 2014 — shortly after Collins learned that a judge was sparing the life of a death row inmate, whom he personally had prosecuted back in 2000 — Collins fired off the following text message to the Indianapolis Star which the newspaper incorporated into its article that same day:

“I was angry and suspicious when this case was sent to a distant judge who is not accountable to the Johnson County citizenry or a grieving mother who couldn’t even afford to drive up for the hearing. The idea that this convicted rapist murdering monster is too sick to be executed is nothing short of outrageous and is an injustice to the victim, her mother, the jury and the hundreds of people who worked to convict this animal.”

Collins subsequently acknowledged that the quote attributed to him was an accurate one. Upon “considering the statement itself, and the surrounding circumstances in which it was made,” the state’s high court concluded “that the statement attacked Judge Miller’s qualifications or integrity and that Respondent made the statement with reckless disregard as to its truth or falsity.”

Maryland
Cecil County State’s Attorney Edward D. Collins, III, resigned on February 13, 2017, the day before he was sentenced (to suspended jail terms and probation) upon his misdemeanor trial convictions of indecent exposure and disorderly conduct, while attending the annual conference of the Maryland State’s Attorneys’ Association in Ocean City, MD last summer.
New Jersey A New Jersey attorney was arrested for allegedly stealing files and data from a prosecutor’s office when had interned. The attorney was already under investigation for creating fake social media profiles, and a search of his electronic devices revealed that he possessed files and data belonging to the Morris County Prosecutor’s Office.
New Mexico
The New Mexico Supreme Court issued, on February 6, 2017, its formal opinion in Matter of Chavez and Matter of Gallagos, which memorializes and explains its disposition from the bench, nearly a year ago, of disciplinary proceedings initiated against a former ADA (now a trial court judge) and his supervisor, the District Attorney for the Eighth Judicial District. The Court thought it especially important to issue an opinion that “clarifies an issue of fundamental importance: it is unlawful for a court or an officer of the court to issue any subpoena in the absence of a pending judicial action.”

In 2013-2014, then Deputy District Attorney Emilio Chavez (who joined the prosecutor’s office in 2005) signed and issued nearly 100 subpoenas, primarily seeking cell phone subscriber & call activity information; some sought medical records or information from a utility company or the state’s child welfare agency. None of the subpoenas was connected to a pending case or had prior judicial approval, nor were any issued by a sitting grand jury. And Chavez was able to issue the subpoenas “without notice to [any of] the individuals whose information was being sought” “[b]ecause there were no cases, there were no parties.”

  • The first batch of subpoenas followed research conducted by Chavez that he used to convince DA Gallegos that investigative subpoenas for cell phone subscriber information would be lawful,
  • “Aside from those [initial] subpoenas Gallegos authorized in the robbery case, he did not know of any others until the filing of the disciplinary action [in late 2014]. [The DA] also did not know that [Chavez’s] subpoenas had been issued in improper form, had been issued without notice to parties in the various cases, or had been improperly filed.”

After discussing why Maryland law does not support prosecutors’ unilateral issuance of subpoenas such as those in issue, the Supreme Court explained why it had concluded both Chavez and DA Gallegos had violated Rule 16-404(A) of Maryland’s Rules of Professional Conduct, which declares that “a lawyer shall not use means that have no substantial purpose other than to embarrass, delay or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.” In brief, “[a] subpoena that issues improperly, but has the guise of authority and caries the threat of punishment falsely suggests that the recipient is legally required to answer and has therefore lost the right not to respond. This is misleading and unfair, and represents an abuse of the government’s substantial power and responsibility.”
The Court also concluded that DA Gallegos violated Rule 16-501(C), which speaks of the responsibilities of supervising attorneys.

“Based on the analysis above, Gallegos should have known that the issuance of the subpoenas violated the Rules of Professional Conduct. Furthermore, we are concerned that Gallegos was not aware of the practice… and that his office lacked sufficient controls to preclude the practice. We urge New Mexico district attorneys to maintain sufficient training and oversight to avoid the improper issuance of subpoenas in the future.”

The Court, however, declined to suspend either Chavez or the DA, for there was no evidence of “bad faith or intent to deceive,” and both attorneys had fully cooperated with the disciplinary proceedings against them. Consequently, it had deemed formal reprimand to be the proper sanction last year, and further directed the reprimands to be deferred for a year. I.e., the reprimands will be withdrawn if there are no further violations of the Rules of Professional Conduct within that time. That 1-year timeframe is about to expire.