The Right Thing

Code of Conduct

2nd Quarter 2025 Ethics Decisions

Brady/Giglio/Rosario & Other Discovery Issues

1st Dept

No Brady or Rosario violations

• Trial court did not err in summarily denying defendant’s CPL 440.10 motion that alleged the People violated Brady because they did not disclose NYPD paperwork pertaining to defendant’s medical care. “Initially, his contention that the form exists is speculative. Second, any information it contained could not be considered ‘suppressed’ because…defendant would know of his own hospitalization and exams (People v Doshi, 93 NY2d 499, 506 [1999]). Furthermore, defendant did not demonstrate ‘a reasonable probability that the result would have been different if the evidence had been disclosed,’ as the information he suggests that NYPD form would have conveyed was adduced at trial through witness testimony (People v Giuca, 33 NY3d 462, 473-474 [2019]).” People v Bailey, 2025 NY Slip Op 03144 (1st Dept 5/22/25).

• 1st Dept upheld trial court’s denial of CPL 440.10 motion to vacate 2011 conviction (so discovery provisions of CPL Article 245 not in play). “Only one of the police follow-up reports defendant addresses constituted a statement of a witness related to the subject matter of his testimony…, and the record clearly shows that this report was disclosed to the defense. Similarly, the only report that contained exculpatory matter recounted defendant’s statement to police after his arrest. ‘Evidence is not suppressed where the defendant knew of, or should reasonably have known of, the evidence and its exculpatory nature’ [citations omitted].” People v Squire, 2025 NY Slip Op 02882 (1st Dept 5/13/25).

2d Dept

GJ Witness Recants Testimony – Brady Application

• People v Cooper, 2025 NY Slip Op 03816 (2d Dept 6/25/25) – The Supreme Court properly denied that branch of the defendant’s pretrial motion which was to dismiss the indictment pursuant to Brady v Maryland (373 US 83) and, in effect, CPL 210.35(5) The People did not have an obligation to present evidence that one of their grand jury witnesses later recanted his testimony. Notably, the recantation occurred months after the witness testified, and after the grand jury had voted to indict the defendant and the indictment had been filed. Under the circumstances of this case, the witness’s recantation only created an issue of credibility, which the People were not obligated to present to the grand jury.

Dismissal for Discovery Noncompliance Affirmed

• People v Coley, 2025 NY Slip Op 01945 (2d Dept 4/2/25) – 30.30 dismissals for COC violations affirmed on appeal. Court found “the People were required to disclose, pursuant to CPL 245.20(1)(k)(iv), underlying records from a prior case where one of the prosecution witnesses was found to be incredible . . .” Case involved a police witness whose testimony was found to have been incredible in an unrelated case. Rejecting the People’s claim that automatic discovery did not apply because other case was unrelated, Court held that “the underlying records in the case in which Lt. Ruiz’s testimony was found to be incredible did relate to the subject matter of this case for impeachment purposes . . .” and “we therefore hold that records that may ‘tend[ ] to … impeach the credibility of a testifying prosecution witness’ are related to the subject matter of the case, and must be disclosed as part of automatic discovery (id. § 245.20[1][k][iv]).”

4th Dept

Brady Claim Rejected /Molineux Properly Admitted

• People v. Phillips, 2025 NY Slip Op 03893 (4th Dept. 6/27/25) – The “failure of the police to find latent fingerprints on one of the plastic bags . . . was not exculpatory” and therefore, the late production of said report did not cause prejudice to accrue to the defendant nor did it require the imposition of sanctions. Additionally, the Court’s Molineux ruling was proper. Two searches of defendant’s mother’s house occurred two days apart. Even assuming, arguendo, that the evidence in question concerning the first search was Molineux evidence, the court did not err in admitting it. Such evidence was relevant to establish defendant’s constructive possession of the contraband found in the residence two days later, and to establish defendant’s “intent to sell” the significant amount of the controlled substances found in the attic during the second searc h.

Discovery Sanction

• People v Mccants, 2025 NY Slip Op 03433 (4th Dept. 6/6/2025) – Court did not abuse its discretion in fashioning an appropriate remedy by excluding the BWC footage and precluding any reference thereto under CPL 245.80 for belated disclosure of body-worn camera (BWC) footage.

No Brady Violation Regarding Drugs Administered to Defendant prior to Statement

• People v Ritchie, 2025 NY Slip Op 03410 (4th Dept. 6/6/2025) – Defendant “knew of, or should reasonably have known of, the evidence and its exculpatory nature” i.e., that he had received an injection of Haldol shortly after he was apprehended and just before he made certain incriminating statements. Also, defendant’s for-cause challenges to prospective jurors, each of whom he alleged had “a state of mind that [was] likely to preclude [them] from rendering an impartial verdict based upon the evidence adduced at trial” (CPL 270.20 [1] [b]) were properly denied. The court obtained “the requisite unequivocal assurance of [the prospective jurors’] ability to be impartial,”.

Unseal

• People v Richards, 2025 NY Slip Op 03453 (4th dept. 6/6/2025) People are not required to move to unseal in camera testimony when avenue is equally available to defendant

People Did Not Violate Brady Regarding Witness Inconsistencies

• People v Loveall, 2025 NY Slip Op 02470 (4th Dept. 4/25/2025) – People did not commit a Brady violation with respect to inconsistencies in the statements the witness made to police. The People learned from the witness only days before her trial testimony that some of the information in the police statement was wrong and that there were some things typed incorrectly by the stenographer. The People immediately provided that information to the defense. Thus, defendant failed to establish that “the evidence was suppressed by the prosecution”. In any event, even assuming, arguendo, that there was a delay in disclosing the evidence, “[i]t is well settled that a defendant’s constitutional right to a fair trial is not violated when, as here, he is given a meaningful opportunity to use the allegedly exculpatory material to cross-examine the People’s witnesses or as evidence during his case”.

Voir Dire & Juror Issues

2d Department

Challenge for cause improperly denied

• People v. Williams, 2025 NY Slip Op 03087 (2d Dept. 5/21/25) – during voir dire, a prospective juror repeatedly indicated that he would hold the defendant’s failure to testify against him. The prospective juror maintained that he was unable to “promise” that his decision would not be affected if the defendant did not testify at trial. Since the prospective juror made statements that cast doubt on his ability to render an impartial verdict under the proper legal standards and did not, upon further inquiry, provide unequivocal assurances that he would be able to render a verdict based solely upon the evidence adduced at trial, the Supreme Court should have granted the defendant’s for-cause challenge (see CPL 270.20(1)(b).

4th Dept

People gave race-neutral reasons in response to Batson claim

• People v Duran, 2025 NY Slip Op 03434 (4th Dept. 6/6/2025) -The burden under prong two of Batson “is minimal, and the explanation must be upheld if it is based on something other than the juror’s race, gender, or other protected characteristic”.. Here, regarding the challenges to the prospective jurors the People’s explanations were based on the demeanor of those prospective jurors. Those explanations were thus “facially race-neutral”. Furthermore, the challenge to the prospective juror in question on the second panel also had a race-neutral explanation; the prosecutor explained that the challenge was based on the prospective juror’s vision problems, which the People were concerned would affect her ability to watch the video evidence that was a critical part of the People’s case.

Direct

3d Dept

• People v. Varno, 2025 NY Slip Op 03668 (3d Dept. 6/18/25) – During direct examination at this DWI trial, the prosecutor referred to the results of defendant’s preliminary breath test results. The trial court had already ruled that such evidence was inadmissible. Defense counsel objected and moved for a mistrial. The court sustained the objection, denied the request for a mistrial and instructed the jury to disregard the references. Any prejudice to defendant was ameliorated by the court’s prompt curative instruction, and the prosecutor’s conduct here did not deny defendant due process.

4th Dept

Identification testimony improper

• People v. Alcaraz-Ubiles, 2025 NY Slip Op 03929 (4th Dept. 6/27/2025) – Witness had “disclosed on cross-examination at trial that he had identified defendant as the assailant in a photograph shown to him by the police.” No 710.30 notice was ever served, and trial court erred in relying upon trial evidence to reach the conclusion that the ID was confirmatory. Prior familiarity should not be resolved at trial in the first instance, and, in any event, the witness’s trial testimony was not sufficient to establish that the identification was confirmatory. Consequently, the 4th Dept. prviously concluded that a mid-trial Rodriguez hearing would have been the proper procedure and remitted the case for that purpose (214 AD3d 1470). Now upon return from remittal hearing, assault conviction is reversed and identification suppressed. Although the witness testified that he knew defendant because he had seen him ‘a couple of times’ at the barber shop, and that the two had each other’s phone numbers, [the witness] also testified that he did not know defendant well, that he knew him only by a common nickname, and that they never spoke again after the assault”.

Re-direct/Rebuttal

1st Dept

• People v Celleri, 2025 NY Slip Op 03657 (1st Dept 6/17/25) – People were properly permitted to introduce, as a prior consistent statement, “text messages from months before one of the victims reported her abuse, to rehabilitate her credibility after defense counsel’s questioning during cross-examination suggested that she had fabricated her claims after her mother beat her (see People v McDaniels, 81 NY2d 10, 18 [1993]). In any event, any error was harmless….”

Summation

Court of Appeals

People v T.P., 2025 NY Slip Op 03642 (6/17/2025) – Manslaughter 1 conviction reversed on the ground that that trial counsel was ineffective for not objecting to certain aspects of the prosecutor’s summation that impermissibly denigrated defendant and her justification defense.

1. The prosecutor told the jury, “You never heard testimony that [the defendant] was in fear for her life. You never heard testimony that she was in fear of serious injury. Nothing.” But as the People conceded on appeal, this was false; defendant had indeed testified that just before she stabbed her victim, she was “scared for my life,” and subsequently confirmed that was afraid for her life.
2. The prosecutor repeatedly branded the defendant a liar, e.g., characterizing her testimony as “unsubstantiated wild lies” and claiming that “the only thing we can get out of her are lies.” In short, the prosecutor used the the word “lie” or “lies” in reference to the defendant a total of 14 times.

• [Notably, the 4th Department had previously reached the opposite conclusion, opining that the prosecutor’s remarks highlighting defendant’s untruthfulness and disagreeing with defense counsel’s assertion that defendant was now telling the truth were fair comment on the evidence].

2d Dept

Summation Errors Not Enough For Reversal:

• People v. Chandler, 2025 NY Slip Op 02350 (2d Dept. 4/23/25) – the prosecutor’s remarks during summation, for the most part, constituted fair comment on the evidence and the inferences to be drawn therefrom or were fair response to defense counsel’s comments during summation. Although the prosecutor attempted to impermissibly shift the burden of proof during summation, the Supreme Court immediately sustained defense counsel’s objection, and the curative instructions provided by the court alleviated any prejudice that may have resulted from the prosecutor’s improper remark (see People v Ramsey, 48 AD3d 709). Moreover, any impropriety in the prosecutor’s remarks was “not so flagrant or pervasive as to deny the defendant a fair trial”

3d Dept

• People v. Varno, 2025 NY Slip Op 03668 (3d Dept 6/18/25) – In summation at a DWI trial the prosecutor incorrectly stated that a witness had identified defendant at the bar. In fact the witness has not identified the defendant and had only referred to an unidentified woman. The trial court overruled defendant’s timely objection, but reminded the jury that their recollection controls, not counsel’s, and that they could have testimony read back to them. Under the circumstances, the prosecutor’s misstatement did not deny defendant her right to a fair trial.

App Terms

• People v Joseph, 2025 NY Slip Op 50890(U) (App Term 1st Dept. 6/3/2025) – Reversed, new trial ordered. Prosecutor became an unsworn witness when he offered facts not in evidence based upon his own observation of complainant during a trial recess. Prosecutor’s statement improperly encouraged inferences of guilt based on facts not in evidence, and improperly injected the prosecutor’s credibility into the trial, by virtue of his position with the District Attorney’s office.

Disciplinary & Other Proceedings/Sanctions

Attorney publicly censured for lying about his non-compliance with CLE requirements

• Attorney made false certifications regarding his CLE compliance for the 2017–2019 period. He repeated the falsehoods during the AGC’s initial investigation, even under oath, and claimed he had received CLE certificates but could not find them. Once formal charges were served, he did “come clean,” acknowleged his misconduct, and expressed deep remorse. The AGC first recommended a 6-month suspension, but the 1st Dept agreed with the recommendation of the sanctions hearing referee and issued a public censure because of mitigating factors. Matter of Keith, 2025 NY Slip Op 03632 (1st Dept 6/12/2025).

DOJ Attorney Disbarred Upon Criminal Conviction:

• Respondent, while a member of the US DOJ, along with other co-conspirators, conspired to commit the offense of making false statements to a bank by misrepresenting the true source and purpose of transfers of tens of millions of dollars from foreign accounts to federally insured financial institutions in the United States. Upon his guilty plea to 18 USC §§ 371 and 1014, he cooperated and was then sentenced to 3 months’ incarceration. Based on all of the above, Higginbotham was disbarred in NY. Matter of Higginbotham, 2025 NY Slip Op 02203 (2d Dept 4/16/25).

Attorney Failed to Cooperate with Grievance Committee  

• In the Matter of Fisher, 2025 NY Slip Op 03856 (3d Dept. 6/26/25) – Four clients complained to the Attorney Grievance Committee (AGC) that attorney Fisher had abandoned them and had not responded to telephone calls, emails and or text messages. Subsequently, in response to a request from the AGC, attorney Fisher gave initial responses to two of the 4 complaints but failed to respond to the AGC’s request for additional information.  

The AGC is authorized to obtain records as part of its investigative function. Attorney Fisher had an obligation to comply with the Committee’s demands and his failure to do so constituted professional misconduct and also impaired the effectiveness of the AGC. He did not attempt to respond by providing phone logs, copies of correspondence or copies of calendars, documents filed with courts on behalf of clients or bills or accounting statements. The lack of such records is inconsistent with attorney Fisher’s detailed account of his actions on behalf of clients. While attorney Fisher referred to medical issues as an explanation, he did not provide medical evidence to support his claim. The medical release form that he provided to the court, implying that the court could obtain the records, was not an acceptable response. Attorney Fisher also failed to provide the documents even after the Appellate Division gave him additional time to do so.

Third Department granted the AGC’s motion to suspend attorney Fisher during the pendency of the investigation, and the court “remind[ed] respondent of his affirmative and ongoing obligation to respond or appear for further investigatory or disciplinary proceedings, and note that his failure to do so within six months of this order may result in his disbarment without further notice.”

Attorney Did Not Advise the Grievance Committee of Conviction

• In the Matter of Chesebro, 2025 NY Slip Op 03855 – (3d Dept. 6/26/25) – Attorney Chesebro, who was admitted to practice in multiple states, had an extensive background in constitutional law and election law. In satisfaction of the multi-count indictment filed in Georgia, he pleaded guilty to conspiracy to commit filing false documents, a felony in that state. But he failed to advise the 3rd Department and the Attorney Grievance Committee of that conviction and his suspensions in other states. Even though he had no disciplinary history, given that failure and his lack of remorse for his criminal behavior, the Appellate Division disbarred him based on the sister state conviction for a serious crime.

Cyber Security

• Florida Bar v. Martinez (Supreme Court FL, 6/19/2025) – Attorney Suspended for 90 days – Deleting contents of a USB drive belonging to former employer constituted violations of rules 3.4 (Fairness to Opposing Party and Counsel) and 8.4.
  • Martinez knew the contents of the USB drive were in question and relevant to the litigation between her and the firm. Yet, she delayed returning the drive and deleted its contents before finally returning it. Thus, we approve the referee’s recommendation that Martinez be found guilty of violating rule 4-3.4(a).

Miscellaneous

Court of Appeals

People v Salas (Christopher), 2025 NY Slip Op 03603 (6/12/2025) – Court chastised defendant’s attorney on the appeal, a young associate at Milbank, the elite Manhattan law firm that was handling the case pro bono:

Contradicting his representations to the courts below, defendant asserted before this Court that “we don’t know if there [a]re missing transcripts,” and that the trial transcript may in fact be complete. We cannot countenance this shift in defendant’s position respecting the facts of this case. Parties may freely make alternative legal arguments; but they cannot make mutually inconsistent representations of fact for strategic purposes as litigation proceeds. We hold defendant to his repeated acknowledgement, which the record amply supports, that a “key portion” of the trial transcript is “missing” or “lost.”

3d Dept

Public Censure

• Matter of Moses, 2025 NY Slip Op 02639 (3d Dept 5/1/2025) – Public censure after weighing aggravating and mitigating factors for ingestion of illegal substance while running for office that was highly public.

App Term

• People v Bland (LaMon), 2025 NY Slip Op 50784(U) (App Term 1st 5/19/2025) – Revocation of defendant’s law license is not statutory and would not directly flow from a misdemeanor conviction (22 NYCRR 1240.12).

AI Use

Sanctions for fake cites

• Ramirez v. Humala – EDNY 5-13-2025.pdf – Sanction of $1,000 is sufficient but not more than necessary to serve the deterrence purposes of Fed Rule Rule 11 for brief with fake citations.

• Lacy v State Farm CD of CD 5/6/2025 – Sanction for attorneys had used AI tools including CoCounsel, Westlaw Precision, and Google Gemini to outline and generate their brief containing fake cites. Sanctions included::
  • Striking all versions of the attorneys’ supplemental brief.
  • Denying the discovery relief they sought.
  • Ordering the law firms to jointly pay $31,100 in the defendant’s legal fees.
  • Requiring disclosure of the matter to their client.

Public Reprimand

• Steven Marullo Public reprimand 2025-2 MA Board of Bar Overseers 4/30/2025 – public reprimand for failing to supervise his associate who relied upon and included inaccurate case research obtained through the use of artificial intelligence in pleadings.

1st Department Not Pleased with AI Video

• Man Employs A.I. Avatar in Legal Appeal, and Judge Isn’t Amused. The use of a video persona created with artificial intelligence software to help make an argument earns a stern rebuke.
  • Watch what happens on the 1st Dept’s YouTube Channel

Motion Denied and Certification for AI Use

• An v. Archblock Inc. denied motion because fake citations – warning and required certification Ct. Chancery Delaware 4-4-2025.pdf

News From Other States

https://pe.nypti.org/wiki/Special:NYPTI_Decisions?universalID=728468355

• In re State Bar of Arizona, SB-24-0007-AP (Ariz. Apr 11, 2025) – Maricopa County prosecutor suspended for 2 years