The Right Thing

Code of Conduct

3rd Quarter 2025 Ethics Decisions

Brady/Giglio/Rosario & Other Discovery Issues

4th Dept

Defense Used Discovery Sanction as a “Sword” and Therefore Opened the Door

• People v Bonanza, 2025 NY Slip Op 04365 (4th Dept. 7/25/2025 – Defendant was not deprived of a fair trial by the admission of certain expert testimony. The People disclosed to the defense the name of two experts and the report from the victim’s medical examination, which showed that the victim had a healed laceration in her hymen. The People failed to turn over the curricula vitae and proficiency tests of those experts. County Court precluded one expert from testifying and held that the second expert could provide only limited testimony. During opening statements, defense stated that the victim had been medically examined and that there was “[n]o indication of trauma”. The court revisited its ruling and held that the second expert could give testimony regarding the examination. Defendant “ignores the fact that he initially benefitted from a favorable ruling barring introduction of the [testimony regarding the examination], and then sought to utilize that ruling as a sword, to his advantage, by mischaracterizing [the victim’s medical examination]”.

Due Diligence Not Established

• People v Ernst, 2025 NY Slip Op 04329 (4th Dept. 7/25/2025) – People’s appeal of a 30.30 dismissal affirmed 3:2. Court did not err in determining that the People violated their initial discovery obligations by failing to disclose the police report and body-worn camera footage relating to a welfare check of two of defendant’s children conducted by police officers two days after the assault. Despite being aware of the welfare check, which directly related to an issue upon which they presented testimony at the grand jury proceeding, the People failed to undertake the requisite efforts to ascertain the existence of, and obtain, the police report and body-worn camera footage, sending only a single letter to the police department that had conducted the welfare check and failing to follow up. Under the circumstances presented here the People failed to meet their burden of establishing that they exercised due diligence and made reasonable inquiries prior to filing the initial COC.

Case remitted to trial court for calculation of time chargeable to the People

• People v Harris, 2025 NY Slip Op 04302 (4th Dept 7/25/2025) – People’s from a CPL 30.30 dismissal after trial court deemed the People’s statement of readiness illusory. Case remitted back to trial court because it had failed to address the People’s contention that the chargeable time did not exceed six months.

Miscellaneous

Wrong Attorney Served

• People v Calvin Y., 2025 NY Slip Op 51383(U) (Crim. Ct. NY Co. Coleman, J. 9/2/2025) – People served discovery materials, CoC and SoR upon attorney who stood in for retained counsel at arraignment, not the attorney of record. Recipient attorney, who was not a member of retained lawyer’s firm, did not alert People to the error. When retained counsel wrote to ask if People would consent to dismissal since more than 90 days had passed, People immediately sent him what had been transmitted to stand-in atorney. Court granted 30.30 motion. People were on notice re retained counsel, and their later “prompt response when counsel contacted them is insufficient to outweigh the People’s prior negligence.”

Viewing BWC to Ensure Discovery Compliance

• People v Mesan-Moran, 2025 NY Slip Op 25188 (Crim Ct, Bronx Co., Moore, J. 8/14/2025) – DWI charge dismissed because People had yet to provide names and contact information for civilian witnesses at the scene who appeared on BWC videos speaking to officers about defendant. Correspondence between defense counsel and the assigned prosecutor indicated “that the People failed to review their own BWC footage before certifying their discovery compliance and trial readiness.”

13 Emails is Not Due Diligence

• People v Hopkins, 2025 NY Slip Op 50791(U) (Crim Ct. Bronx Co. Wolf, J. 5/16/2025) – In opposing defense motion, the People argued that their 13 emails to NYPD demonstrated due diligence. Trial court rejected that contention: “The number of times the prosecution tried the same process with the same result does not indicate due diligence. It wasn’t until they tried the reasonable, logical step of talking to their own witnesses that they were able to obtain and share the missing discovery.”

Grand Jury

1st Dept

Grand jury integrity not impaired by alleged prosecutorial misconduct

• Court upheld trial court’s denial of motion to dismiss indictment on ground that prosecutorial misconduct had impaired the integrity of the grand jury. “Even assuming that the grand jury identification witness’s testimony contained some inaccuracies, the record does not establish that the witness testified falsely, instead of being mistaken about some of the details of what she observed…. We also find that the instructions read to the grand jury, taken as a whole, correctly conveyed the proper legal standard….” People v Williams, 2025 NY Slip Op 05016 (1st Dept 9/18/25) [citations omitted].

Voir Dire & Juror Issues

7/9/2025 ABA issues formal ethics opinion on discrimination in the jury selection process

• ABA Formal Opinion 517

“A lawyer who knows or reasonably should know that the lawyer’s exercise of peremptory challenges constitutes unlawful discrimination in the jury selection process violates Model Rule 8.4(g). It is not “legitimate advocacy” within the meaning of Model Rule 8.4(g) for a lawyer to carry out a trial strategy that would result in unlawful juror discrimination. A lawyer may not follow a client’s directive or accept a jury consultant’s advice or AI software’s guidance to exercise peremptory challenges if the lawyer knows or reasonably should know that the conduct will constitute unlawful juror discrimination. However, a lawyer does not violate Rule 8.4(g) by exercising peremptory challenges on a discriminatory basis where not forbidden by other law.”

Opening

• Defendant’s challenge to prosecutor’s opening was unpreserved for appeallate review and without merit. “Absent bad faith or undue prejudice, a trial will not be undone by a prosecutor’s failure to prove every statement made in his or her opening statement [citation omitted],” and the record here did not support a finding of bad faith. After the trial court dismissed the menacing count, it told the jury “to disregard any reference to the defendant’s alleged possession of a weapon during a traffic altercation,” thereby miminizing any prejudice to the defedant from the prosecutor’s reference to the weapon in his opening when he described what the People intended to prove. People v Franklin, 2025 NY Slip Op 04190 (2d Dept 7/16/25).

Direct

1st Dept

• Compilation video properly received into evidence as People’s Exhibit. It “was comprised of videos that had already been admitted and authenticated, or had been admitted subject to connection and subsequently authenticated. The additions made by the technician, such as inserting words, circles, and arrows, ‘merely highlighted portions of the video rather than changed the substance of the video’ [citation omitted].” People v Stewart, 2025 NY Slip Op 05175 (1st Dept 9/25/25):

2d Dept

Rap recording should not have been admitted

• People v Reaves, 2025 NY Slip Op 05107 (2d Dept 9/24/25) – People introduced rap song, performed during recorded phone call from jail, through testimony of a DA’s Office investigator deemed an expert in slang. Conviction reversed and new trial ordered because the investigator was not qualified to offer expert opinion testimony regarding the meaning of the rap lyrics; “his ultimate proffered opinions precisely and remarkably mirrored the People’s exact factual theory of the case;” and some of his interpretations “implied that the defendant had committed prior bad acts and crimes that were not charged in the indictment.”

Evidence was not Molineux evidence:

• People v Franklin, 2025 NY Slip Op 04190 (2d Dept 7/16/25) – “[T]he challenged evidence [not described by the 2d Dept] did not constitute Molineux evidence, since it was not a prior bad act or prior uncharged crime, but rather, was relevant to the very same crime for which the defendant was on trial, and the evidence provided a complete narrative of the events charged in the indictment as well as necessary background information. Moreover, any prejudice to the defendant was minimized by the court’s limiting instructions.” [Internal punctuation and citations omitted.]

Summation

• The circumstances of the victim’s killing developed at trial render the prosecutor’s summation remarks calling the shooting “an execution” were fair comments on the evidence. People v Stewart, 2025 NY Slip Op 05175 (1st Dept 9/25/25):

NY Disciplinary & Other Proceedings/Sanctions

Bronx Judge Censured Over Unwarranted Ejections and ‘Unseemly’ Criticism of Prosecutors

• NYS Commission on Judicial Conduct Semaj.Naita.2025.05.30.Determination.pdf
  • NYS Commission on Judicial Conduct Semaj.Naita.A.Press Release.2025-07-08.pdf

Email issues are no excuse for failing to respond to Attorney Grievance Committee

• Matter of Kimberly Marie Wells, 2025 NY Slip Op 04852 (3d Dept 9/4/2025) – Interim suspecion ordered for failure to comply with AGC’s lawful demands. Court rejected claim that technical issues caused email to go to spam folder. Attorney was on notice that AGC would be emailing her. Plus, she was then given 60 additional days to respond, but did not do so.

Cyber Security

Going to Spam – Tech Issues

• Matter of Wells, 2025 NY Slip Op 04852 (3d Dept. 9/4/2025) – Attorney suspended. Court rejects claim that technical issues caused email to go to spam folder. She was on notice that the Grievance Committee would be emailing.

Miscellaneous

1st Dept

Selective enforcement claim rejected

• People v Trump, 2025 NY Slip Op 04756 (1st Dept 8/25/25) – App Div reaffirmed that “a novel application of a statute is not evidence that defendants were treated differently than a similarly implicated person or organization.” Defendants here did not demonstrate a change of facts since a selective prosecution argument was raised before the 1st Dept in 2022, on appeal from denial of motion to quash AG’s subpoenas, that would show they “were treated differently from any similarly situated persons.” Consequently, the trial court did not err in denying the motions for summary judgment on the ground of selective enforcement.

Ethics Opinions

Bar Association Opinions

ABA Formal Opinion 517 July 9, 2025 – Discrimination in the Jury Selection Process and RPC 8.4

ABA Formal Opihion 537

ABA’s summary:

• “A lawyer who knows or reasonably should know that the lawyer’s exercise of peremptory challenges constitutes unlawful discrimination in the jury selection process violates Model Rule 8.4(g). It is not ‘legitimate advocacy’ within the meaning of Model Rule 8.4(g) for a lawyer to carry out a trial strategy that would result in unlawful juror discrimination. A lawyer may not follow a client’s directive or accept a jury consultant’s advice or AI software’s guidance to exercise peremptory challenges if the lawyer knows or reasonably should know that the conduct will constitute unlawful juror discrimination. However, a lawyer does not violate Rule 8.4(g) by exercising peremptory challenges on a discriminatory basis where not forbidden by other law.”

News From Other States

Prosecutor Reprimanded for 3.3 and 8.4 violations

• ADA advised a complaining witness in a criminal matter to leave the courthouse while the witness was still under subpoena, and made misleading statements to the court as to why the witness had left. MI Reprimand GA-v-Davis-Case-No-25-5-GA 7-14-2025 3.3 and 8.4.pdf

Reprimand for defense attorney who failed to object

• MI Reprimand Walter White 7/16/2025 – failed to object to inadmissible evidence. Lack of diligence 1.3.

Public censure for discussing case via Instagram

• TN Disciplinary Board v Michael Thompson, 100732-2024-0-SC-Inv (7/9/2025) – Public censure for discussing subject matter of a custody proceeding through Instagram messaging without any privacy controls, in violation of Rule 1.6.