Ethics Watch 4th Quarter 2024

Professional Conduct Resources

The Right Thing

Code of Conduct

4th Quarter 2024 Ethics Decisions

New Biennial Attorney Registration Reporting Requirements

  • Effective 12/1/2024, all attorneys must:
    • Confirm they remain in good standing in out-of-state jurisdictions where they are admitted.
    • Disclose whether they have been subject to public discipline in any other jurisdiction.
    • File their registrations using the mandatory online system.

CPC Rules Adopted

CPC Rules Effective 12/18/2024

Brady/Giglio/Rosario & Other Discovery Issues 

3rd Dept

People v Baez (Saul), 2024 NY Slip OP 05844 (3d Dept 11/21/2024) – Course of Sexual Conduct Against a Child in the Second Degree conviction reversed for a Brady violation. Defense counsel repeatedly sought, before and during trial, Rosario and Brady material, including specific requests for notes of a Social Services caseworker. The People declined to provide the notes on the ground that the case worker was not testifying for the People and the notes did not constitute Brady material. At the court’s directive, the People turned over the notes after summation. Because the notes included “a statement by the victim’s mother expressing concern that the victim was acting normal and as if nothing happened,” the trial court gave an adverse inference charge for what it deemed a Rosario violation. The 3d Dept held that was an insufficient remedy for what was a Brady violation.

The prosecutor had a duty to learn of any favorable evidence known to others on the government’s behalf in the case. While social workers are not generally agents of the police, where they engage in a joint venture with police agencies to collaborate on child abuse or sexual abuse investigations, share a common purpose and have a cooperative working and have a cooperative working arrangement with police, an agency relationship may exist such that the social workers’ knowledge is imputed to the prosecution.

Here, the social worker’s notes were Brady material because information contained in the notes could have affected the credibility of a principal prosecution witness, and the defense was deprived of a “meaningful opportunity” to make use of the caseworker’s notes. And [a]lthough an adverse inference charge is permissible ‘where a defendant, using reasonable diligence, has requested evidence reasonably likely to be material, and where that evidence has been destroyed by agents of the State’ (People v Handy, 20 NY3d 663, 669 [2013]), the relevant materials here — the caseworker notes — were not destroyed.”

➢ Note that this decision applied traditional Brady analysis, without reference to CPL Article 245, which did not apply to Baez’s 2019.

Grand Jury

1st Dept

People v Gurley (Thea), 2024 NY Slip Op 05073 (1st Dept 10/15/24) – Court rejected defendant’s contention that grand jury’s integrity was impaired by the People. “[W]e find that the People had an adequate basis for presenting defendant’s incriminating statements to the grand jury, as they constituted party admissions (see People v Harris, 148 AD2d 469 [1st Dept 1989]). The People also represented that they instructed the grand jury as to justification. The court reviewed the grand jury minutes and concluded that the instructions given were adequate. Finally, defendant’s current contention that the evidence presented to the grand jury was legally insufficient is unreviewable….”

4th Dept

People v Simpson, 2024 NY Slip Op 04887 (4th Dept. 10/4/2024) – Trial court properly denied motion to dismiss for defective GJ proceeding. People conducted proper colloquy with grand juror outside presence of grand jury. Grand juror revealed he worked for the county sheriff’s office at the jail where defendant was being held. Prosecutor thereafter “engaged the grand juror in the requisite ‘further inquiry’ outside the presence of the other grand jurors” which revealed that the grand juror and defendant had not discussed the case and that the grand juror had not heard defendant discussing the case with anyone else. Any question of juror’s impartiality was dispelled by the unequivocal response to the prosecutor’s immediate follow-up question, as well as the statements that the [grand juror] had never discussed [with defendant nor heard him discuss] this case”.

Voir Dire & Juror Issues

4th Dept

People v Stewart, 2024 NY Slip Op 04863 (4th Dept. 10/24/2024) – IAC claim founded, case reversed. Claim that County Court violated CPL 270.15 (2) with respect to the sequence for exercising peremptory challenges was not preserved and Court declined to exercise power to review in the interest of justice. Claim also does not fall within the ‘”very narrow exception'” of a mode of proceedings error to the preservation rule. However, counsel was ineffective because he made several significant errors at trial and that the cumulative effect of those errors deprived defendant of a fair trial. Counsel failed to object to patently improper and repeated comments from the prosecutor regarding his ability to sleep at night now that he is a prosecutor and no longer a defense attorney. Counsel also erred in consenting to the court’s unlawful procedure of having the parties alternate which side went first in declaring whether they wished to exercise a peremptory challenge to a particular prospective juror in violation of CPL 270.15 (2).

People v Allen, 2024 NY Slip Op 05688 (4th Dept. 11/15/2024) – New trial not required because, after the jury rendered a verdict, a seated juror was discovered to be related to the district attorney within a degree of consanguinity or affinity that would have permitted a challenge for cause (see CPL 270.20 [1] [c]). No objection to the juror was made prior to the verdict. CPL 270.15 (4) provides that “[a] challenge for cause of a prospective juror which is not made before [that prospective juror] is sworn as a trial juror shall be deemed to have been waived, except that such a challenge based upon a ground not known to the challenging party at that time may be made at any time before a witness is sworn at the trial.”. Defendant’s objection to the subject juror is “deemed to have been waived” (CPL 270.15 [4]) – juror’s relationship with the district attorney was not a ground unknown to defendant before the juror was seated. Additionally, the Court did not commit a mode of proceedings error during voir dire. Court in its questioning of the panel, brought out potential jurors connections with law enforcement. The further record reflects that, at the time defense counsel commenced his individual questioning of the prospective jurors, he was aware that the subject juror, as well as several others, had a relationship with a law enforcement agency. Defense counsel nonetheless decided not to ask any juror to specify the nature of the relationship or the specific agency to which that juror was connected, explaining that police testimony was not “going to be a huge part of this case. Counsel not ineffective in his questioning also.

Direct

3rd Dept

People v Mayette (Clifford), 2024 NY Slip Op 06083 (3d Dept 12/5/2024) – Convicted of sex crimes perpetrated against a minor when she was between the ages of 8 and 17, defendant argued that the prosecutor used irrelevant photos of the victim in her First Communion dress to invoke the jury’s sympathy. The 3d Dept refused to order a new trial, finding that the photos tended to prove an element of some of the charged crimes: that the victim was less than 13 at the times at issue. The photos showed what the victim looked like on a date less than a month after the defendant was alleged to first have had sexual intercourse with her, when she was 8 or 9, and corroborated the testimony of the victim’s mother concerning the child’s age at that point in time. Although the photos were inflammatory, the sole purpose was not to arouse the emotions of the jurors and to prejudice the defendant or deny him a fair trial. They were properly received in the trial court’s exercise of discretion.

People v Grady (Neshad), 2024 NY Slip Op 06628 (3d Dept 12/36/2024) – During an almost three-hour police-recorded interview with defendant, there were a few minutes of silence after the police posed some questions.  The People did not emphasize that silence on their case in chief and the prosecutor’s remark on summation about defendant’s demeanor during the interview did not imply that defendant refused to answer the officers’ questions. Counsel’s failure to object did not constitute ineffective assistance of counsel. (The Third Department recognized that the issue concerning the defendant’s silence had not been raised in the trial court and that the record did not clearly reflect what portions of the interview had been played for the jury.

Re-direct/Rebuttal

3rd Dept

People v Kane (Christopher), 2024 NY Slip Op 05850 (3d Dept 11/21/2024) – On cross-examination of the underage, sex abuse victim, defense counsel posed questions concerning the lengthy delay in reporting the crimes and suggesting recent fabrication. Since he “opened the door,” the People were properly permitted to elicit testimony from the victim that she came forward because she heard that defendant was making sexual advances to another minor. Moreover, “the minimal detail provided by the victim mitigated the prejudicial effect of her testimony….”

Summation

2nd Dept

People v. Guerra, 2024 NY Slip Op 04978 (2d Dept. 10/9/24) – After holding that trial counsel was ineffective for entering a stipulation and reversng for a new trial, the court went on to address regarding the prosecutor’s summation. Specifically, during summation, the prosecutor stated, in pertinent part, “the defendant . . . never emphatically denied that he didn’t have [the videos and images]. He never, like, when . . . [a detective is] telling him, well, I found it on your cell phone, he never said no, no, no, no, no, it’s not there, it can’t be there, there is no way I would have it there, you know? . . . [w]hat else did the defendant not tell you? There were a lot of things he did not admit.” These remarks improperly “convey[ed] to the jury the impression that the defendant knew he was guilty or he would have explained his actions” (People v Kent, 125 AD2d 590; see People v McArthur, 101 AD3d 752; People v Bailey, 159 AD2d 628), and the prejudicial effect of these improper remarks was not cured by a corrective instruction to the jury (see People v Torres, 223 AD2d 741).

3rd Dept

People v Graham (Leon), 2024 NY Slip Op 06627 (3d Dept 12/26/2024) – Although the prosecutor made several misstatements concerning defendant’s ownership of residential property, the number of times defendant gave a false name to the police (2 times, not 3), the age of a witness, and how a single shot shotgun operated, that did not reach the point of  “a flagrant and pervasive pattern of prosecutorial misconduct” which would deprive a defendant of a fair trial. Nor did the prosecutor’s remark that the testimony of the police officers should be accepted as true deprive defendant of a fair trial here since iw was a a civilian witness, not the police, who testified about defendant possessing the shotgun.

4th Dept

People v Myles, 2024 NY Slip Op 05719 (4th Dept 11/15/2024) – Defendant claimed he was denied a fair trial by two instances of prosecutorial misconduct. Defendant’s challenge to the prosecutor’s remarks regarding the victim’s son during opening statements are not preserved. Prosecutor also used a PowerPoint presentation to merge two admitted trial exhibits depicting photographs of the male victim and the suspect. Court agreed with defendant that the prosecutor effectively created a new exhibit, which was improper, but ruled that the prosecutor’s improper use of the exhibit did not deprive defendant of a fair trial.

Conflict of Interest/Appearance of Impropriety 

Court of Appeals

People v Mero (Edward), 2024 NY Slip Op 06385 (12/19/24)- Court rejected defendant’s claim that his CPL 440.10 motion to vacate the Murder 2 conviction should have been granted because of an undisclosed conflict of interest between his trial attorney and the ADA who was the lead prosecutor. Unbeknownst at the time, the ADA was moonlighting for defense counsel, who paid him to write appellate briefs for convictions in other counties. This relationship did not present an actual conflict, but rather a potential conflict — which will not result in reversal unless the conflict actually operated, to the defendant’s detriment, on counsel’s conduct of his defense. No such showing here.

Disciplinary & Other Proceedings/Sanctions

1st Dept

  • Matter of Manchanda, 2024 NY Slip Op 05833 (1st Dept 11/21/24) – Immigration attorney disbarred because of, e.g., virulent and baseless court filings and racist or anti-Semitic emails directed to sundry persons, including judges and attorneys on the Attorney Grievance Committee’s staff. “There does not appear to be any reported case in which the attorney’s misconduct similarly rose to the virulence that [*10]respondent has demonstrated well before and all throughout this disciplinary proceeding. Words fail to capture the severity and extent of his bigotry. The conduct here is simply shocking and outrageous.”

2nd Dept

  • Matter of Smallman, 2024 NY Slip Op 05561 (2d Dept. 11/13/24) – Criminal defense attorney suspended for 5 years for engaging in a sexual relationship with a woman he was actively representing in a murder case. His client was a human trafficking victim, at liberty during the pendency the prosecution. The 2d Dept. held: “Under the totality of the circumstances, including the vulnerability of CL and the opportunities the respondent had to end the inappropriate communication rather than escalate it to physical contact, we find that the respondent’s conduct warrants his suspension from the practice of law for a period of five years.”

3rd Dept

  • Matter of Sutton, 2024 NY Slip Op 05531 (3d Dept. 11/7/2024) – Granted joint motion to censure attorney for 13 ethical violations after finding mitigation that the attorney is now employed with Steuben County Public Defender’s office with “necessary support she needs in her practice of law to avoid the issues she faced while representing [the complainants].”

Cyber Security

Public Reprimand For Not Deactivating Cloud Link

Miscellaneous

Court of Appeals

People v Mero (Edward), 2024 NY Slip Op 06385 (12/19/24). Besides the conflict of interest issue detailed above, the Court held 5:2 that the trial judge did not abuse its discretion in denying the defense motion to sever the 2 murder counts charged in one indictment. Very good discussion on when charges may be joined and when offenses joined under CPL 200.20 (2) (c) may be severed under CPL 200.20 (3) (a).

People v Dixon (Kerbet), 2024 NY Slip Op 05176 (10/22/24) – Under the circumstances of this case, the People’s monitoring of phone calls that pro se defendant made from jail to his witnesses did not violate the defendant’s constitutional right to present a defense.

3rd Dept

No professional oath or affirmation

  • Matter of Anonymous 2024 NY Slip Op 06102 (3d Dept 12/5/2024) – Failing to unequivocally take and subscribe to an oath or affirmation to support the Constitutions of the United States and the State of New York results in denial of admission to the bar.

4th Dept

Alleged pros-mis on first trial not double jeopardy bar

  • People v Park, 2024 NY Slip Op 05717 (11/15/2024) – Defendant contended that he was forced during his first trial to move for a mistrial due to prosecutorial misconduct and that any subsequent prosecution was thus barred by double jeopardy. Claim rejected. “Where the defendant either requests a mistrial or consents to its declaration, the double jeopardy clauses do not ordinarily bar a second trial”. “However, an exception exists where the conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial”. Here, the record does not support defendant’s claim that the mistrial motion was “necessitated by a deliberate intent on the part of the prosecution to provoke a mistrial”.

AI Use

4th Quarter 2024

Attorney Sanctioned $2k for Fake Cites

News From Other States

Illinois
Complaint against lawyer alleges lack of diligence and dishonesty in concealing his inaction and also disparaging a judge on Facebook’

  • December 11, 2024 Complaint in Matter of Jason Lawrence Spangehl (Hearing Board of the Illinois Att’y Reg’n and Disciplinary Comm’n, No. 6304053 ) – Pending complaint alleges that attorney failed to act with reasonable diligence and promptness in representing a client, by conduct including failing to file the Form I-130 for L.B.’s husband and his children, in violation of Rule 1.3 of the Illinois Rules of Professional Conduct; failing to promptly comply with reasonable requests for information, by failing to respond to L.B.’s requests for receipts for the $3,500 that she had paid to Respondent, and failing to inform L.B. that he had not filed the Form I-130 for her husband and his children, in violation of Rule 1.4(a)(4) of the Illinois Rules of Professional Conduct; and knowingly making the false statement to L.B. that he had filed the Form I-130 for her husband and his children when Respondent knew that he had not filed the Form I-130, in violation of Rule 8.4(c) of the Illinois Rules of Professional Conduct. It is also alleged that the attorney made a statement which he knew to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge by posting false and disparaging comments on Facebook, in violation of Rule 8.2(a) and Rule 8.4(c) of the Illinois Rules of Professional Conduct.

Kentucky
Rejected disciplinary charges filed by the state bar association against veteran prosecutors, based on their handling of a 1992 murder case

  • The Supreme Court of Kentucky agreed that none of the four counts in the complaint filed by the Kentucky Bar Association (that state’s attorney disciplinary body) should give rise to any disciplinary sanction. “We note generally that both Ryan and Williams have maintained lengthy, unblemished careers as prosecutors with no history of prior discipline and a clear dedication to public service. Ryan represented the Commonwealth in litigating this case for approximately twenty-two years, and Williams assisted with the case since 2015. While appreciating the serious concern of overzealous or vindictive handling of criminal matters by the state, and the KBA’s and this Court’s role in ensuring fair and unbiased handling of criminal cases, the KBA has not met its burden. [W]e we conclude that Ryan and Williams did not commit any misconduct and that no discipline is warranted.” In re Perry Thomas Ryan and In re David Michael Williams, official citation not yet available (Ky Sup Ct Docket Nos.Nos. 2024-SC-0199-KB & 2024-SC-0200-KB 12/19/24).

Minnesota
Prosecutor reprimanded for failure to comply with victim notification statute

West Virginia
Former County Prosecutor suspended for 3 years, doubling the hearing board recommendation.

  • West Virginia’s Supreme Court of Appeals concluded that the hearing board erred in dismissing one of the 5 counts filed against the elected prosecutor who had resigned in 2023 as the investigation into her conduct unfolded. It also rejected the hearing board’s recommendation of a 1½- year suspension and suspended the attorney for 3 years. Shortly after taking office, the county prosecutor asked for funding for another assistant prosecutor — and then hired her boyfriend for the position; when he left the office, she did not replace him. The other charges arose of her misconduct and professional lapses of the prosecutor herself or her staff. Lawyer Disciplinary Bd. v Donna E. Taylor, official citation not yet available] (W.Va. Sup Ct Docket No. 23-133. 1/13/24).