Ethics Watch 4th Quarter 2023


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4th Quarter 2023 Ethics Decisions

Brady/Giglio/Rosario & Other Discovery Issues

Court of Appeals

People v Bay (Michael), 2023 NY Slip Op 06407 (12/14/23) – Judgment reversed and charge dismissed in case where People filed their certificate of compliance with Article 245 requirements before turning over, e.g., recording of 911 call. “Because the People failed to show they had exercised due diligence and made reasonable efforts to identify mandatory discovery prior to filing the COC, the COC was not proper when filed, and the prosecution’s declaration of trial readiness was therefore illusory.”

1st Department

People v Jackson (Johnny), 2023 NY Slip Op 05043 (10/5/23) – SORA adjudication vacated & matter remitted for de novo hearing and determination. “[T]he People acted improperly in raising, for the first time at the hearing, as the basis for scoring defendant 15 points for inflicting physical injury under risk factor 1, a new reason or theory that differed from the basis for that scoring specified in the Board’s case summary and in the People’s prehearing submissions. This deprived defendant of the proper advance, informative notice of “the reasons” and “basis” for the People seeking the 15-point determination to which he was entitled under Correction Law § 168-n (3) and due process, so as to afford him a meaningful opportunity to respond to the assessment [citations omitted].”

People v Burgos (Edwin), 2023 NY Slip Op 05229 (10/17/12) – Court rejected claims of Rosario and Brady violations in this 2018 prosecution, under former CPL Article 240 and related case law. A DD5 report “was not Rosario material because it did not reflect the activities about which the detective testified at trial as the People did not elicit any testimony from the detective about the interview. [Nor is this case] controlled by People v Lee (116 AD3d 493 [1st Dept 2014], lv denied 23 NY3d 1064 [2014]), which applied long settled Rosario principles to the particular facts of that case and was not intended to announce a per se rule automatically requiring disclosure of all DD5 reports created by a detective in connection with the investigation of the case [citations and internal punctuation omitted].” Brady issue, premised on another DD5, was unpreserved. Further, any error would be harmless.

People v Chacon (Luis), 2023 NY Slip Op 06220 (12/5/23) – No Brady violation where the People did not disclose that one of the cooperating witnesses was transferred, by agreement, to another correctional faility before he testifed at defendant’s trial. “The transfer agreement did not constitute exculpatory evidence. The witness, who was in federal custody on an separate matter, was relocated for safety reasons, and there was no indication that the prosecutor in this case was involved in the transfer or that the witness was transferred in exchange for his testimony in this state trial.”

Also: People’s motion (under former CPL 240.40) to photograph defendant’s tattoos was untimely because it was not made within 45 days of arraignment, and good cause for the delay was not established. But trial court did not err in granting motion because “the delay itself did not cause defendant any prejudice [see People v Lewis, 44 AD3d 422, 422-423 (1st Dept 2007), lv denied 9 NY3d 1035 (2008)].”

2nd Department

People v Neustadt, 2023 NY Slip Op 05519 (2d Dept 11/1/23) – Trial court at 2021 trial “did not err in permitting the People to call an expert witness in the field of child psychology and child sex abuse, notwithstanding any alleged delay in the People’s disclosure of the contents of the witness’s testimony, as the defendant failed to establish that he was prejudiced by the alleged delay [citations omitted].”

People ex rel. Lazzaro v Molina, 2023 NY Slip Op 05962 (11/20/23) – Defendant’s oral application for ROR pursuant to CPL 30.30(2)(a) was properly granted. As in People ex rel. Fast v Molina, 219 AD3d 1384 (2d Dept 2023), the People failed to demonstrate that production of the grand jury minutes [disclosure of which is required by CPL 245.20(1)(b)] was beyond their control “or that they engaged in diligent efforts to produce the outstanding discovery by their trial readiness deadline.”

3rd Department

People v. Hoffman (Brendan) 2023 NY Slip Op 06004 (11/22/23 – On defendant’s appeal from the trial court’s denial of his CPL 440.10 motion, Third Department agreed that the conviction for aggravated vehicular homicide and related crimes should be vacated and a new trial order ordered. Although defendant had specifically requested all expert opinions, he was not made privy to the fact that the original accident reconstructionist (a local police sergeant) and a State Police reconstructionist had determined that the original calculations made by other local law enforcement officers were incorrect because they had mistaken shadows from overhead utility lines as tire marks.

At trial, the People dd not call any accident reconstructionist and relied on medical testimony to establish who was operating the vehicle. The defense produced an accident reconstructionist who relied on the data from the local police. Since the road had been resurfaced before he was retained, the defense expert was unable to collect data himself.

The withheld information “bore directly on evidence determinative of defendant’s guilt or innocence” and was favorable to the defense. Whether the suppression of that evidence was willful or inadvertent did not matter; the prosecution had an obligation to learn of any favorable evidence known to others acting on behalf of the government, including the police. After reviewing the trial record and the withheld evidence, the 3rd Dept concluded it could not be said that “there was no possibility that the prosecution’s failure to disclose … did not impact the verdict.” Furthermore, the trial prosecutor’s cross-examination of the defense expert and his summation “compounded the prejudice” to defendant.

Matter of Clegg v Rounds, 2023 NY Slip Op 06181 (3rd Dept 11/30/23)] – This was a CPLR Article 78 proceeding brought by a District Attorney challenging his County Court’s discovery orders, and eventual dismissal of the indictment, in Murder 2 case. Third Department declined to order a writ of prohibition insofar as the D.A. sought vacatur of the preclusion orders on the ground that the trial court did not find that the defendant suffered prejudice as a result of the discovery violations [see CPL 245.80 (2)].

“[P]rohibition will not lie as a means of seeking collateral review of mere trial errors of substantive law or procedure, however egregious the error may be [citations omitted].”

But it agreed that the trial court judge “did not have the authority to delegate his judicial functions by letting defendant choose the sanction that should be imposed for petitioner’s discovery violations. A writ of prohibition is available because the alleged error pertains not to the merits of the order, but to the ability of respondent to delegate his decision-making powers to a party. Petitioner has demonstrated a clear legal right to have respondent, and not defendant, pick a sanction for the alleged discovery violation. Indeed, [CPL 245.80 (1)] explicitly provides that the sanction is to be imposed by ‘the court’.”

Grand Jury

3rd Department

People v. Hart (Sean), 2023 NY Slip Op 05763 (11/16/23) – County Court improperly dismissed Rape 1 counts of indictment on the ground that defendant’s confession had not been sufficiently corroborated because victim’s injuries were as consistent with digital penetration as they were with sexual intercourse. Where a defendant has confessed to a crime, he may not be convicted based solely on evidence of a confession or admission. But the corroborating evidence required by CPL 60.50 need not establish each element of the crime or even connect defendant to the crime. See, e.g., People v Flemming, 101 AD3d 1483, 1485 (3rd Dept 2012), lv denied 21 NY3d 942 (2013); People v Guillery, 260 AD2d 661, 662 (3d Dept), lv denied 93 NY2d 971 (1999). Since the victim’s injuries were consistent with sexual intercourse, “the People were entitled to the benefit of that inference” when assessing the sufficiency of the grand jury evidence. “Further corroboration of defendant’s admission of sexual intercourse may, in our view, be found in his and the victim’s respective — yet consistent — timelines of the events.”

4th Department

People v Sheppard, 2023 NY Slip Op 05857 (11/17/23) – Although defendant’s claim — that the integrity of the grand jury was impaired by the prosecutor’s failure to correct false testimony by a police officer — survives a subsequent guilty plea, 4th Dept found “no indication [in the grand jury minutes] that the People knowingly or deliberately presented false testimony.” Therefore, County Court did not err in denying his motion to dismiss the indictment.

People v Reeder, 2023 NY Slip Op 05919 (11/17/23) – 4th Dept refused to consider defendant’s contention that the prosecutor engaged in misconduct during the grand jury proceedings because he raised the claim for the first time in his reply brief (see People v Ford, 69 NY2d 775, 777 [1987], rearg denied 69 NY2d 985 [1987]; People v James, 162 AD3d 1746, 1747 [4th Dept 2018], lv denied 32 NY3d 1112 [2018]).

Voir Dire & Juror Issues

2nd Department

People v Vera, 2023 NY Slip Op 06758 (12/27/23) – Trial court’s denial of defense Batson motion was error, and the conviction was reversed. The defendant challenged the prosecutor’s peremptory challenges to “three Black prospective jurors.” The Second Department held that while the trial court properly found a prima facie showing of discrimination, and that the prosecutor provided “facially race neutral explanations” for the challenges (see People v Allen, 86 NY2d at 109-110), the trial court “improperly determined that the facially race-neutral reasons proffered by the prosecutor during step two were not pretextual.”

  • ADA said he had concerns “as to religious reasons, sympathy reasons” about prospective juror #6 who lived “on church property.” But he never questioned her during voir dire as to whether her living situation would make her more sympathetic to the defendant or about her religious affiliation.
  • He sought to strike prospective juror #10 because she had lived at Creedmoor and worked with the “criminally insane” for 33 years, and “she’s been doing it her whole life, so she’s had involvement with the criminal justice system and dealing with people who have been involved with the criminal justice system.” And prospective juror #11 had worked with handicapped and disabled individuals, some of whom had had mental health issues and/or criminal cases. But as in People v Hall, 64 AD3d 665(2d Dept 2009), “[t]he prosecutor did not offer any explanation for how the[se] juror[s’] employment [situations] related to the factual circumstances of the case or the qualifications of the juror[s] to serve.” Additionally, prospective juror #10 had retired from her Creedmore position 23 years ago and unequivocally declared “No” when the trial judge asked if she would have “any more sympathy or less sympathy for either side because of the work [she] did” — as did prospective juror #10 when asked a similar question.

3rd Department

People v Thaxton (John), 2023 NY Slip Op 06561 (12/21/23) – Defense counsel raised a Batson challenge alleging that the prosecutor had used two peremptory challenges to excuse the only two black members of the initial panel. (The defendant was black.) The prosecutor responded that one of the people excused was an attorney employed by the NYS Assembly which had “just passed bail reform, discovery reform and created a new commission to go after prosecutors.” The second prospective juror had pink hair which the prosecutor believed “is completely nonconformist” and no matter what the juror’s race, he did not want a pink haired or blue or green haired juror on the panel. After hearing from defense counsel, the trial court ruled that the prosecutor’s explanations were not pretextual and dismissed the jurors. The Appellate Division affirmed.

Opening

4th Department

People v Finster, 2023 NY Slip Op 05877 (4th Dept 11/17/23) – Defendant was not deprived of a fair trial by prosecutorial misconduct during the opening statement. The comments were “not so egregious as to deprive defendant of a fair trial” (People v Love, 134 AD3d 1569, 1570-1571 [4th Dept 2015], lv denied 27 NY3d 967 [2016]; and County Court’s instructions during the jury charge ameliorated any prejudice to defendant (see People v Morgan, 148 AD3d 1590, 1591 [4th Dept 2017], lv denied 29 NY3d 1083 [2017].

Direct

2nd Department

People v. Tyme, 2023 NY Slip Op 06387 (12/13/23) – Detective should not have testified that, in his opinion, the defendant was depicted in video footage. “[U]nder the proper circumstances, [a trial court] has the discretion to allow a lay witness to express his or her opinion that an individual depicted in a surveillance video is the defendant [see People v Russell, 79 NY2d 1024 (1992)]), [but] here, there was no basis for concluding that the police detective was more likely than the jury to correctly determine whether the defendant was depicted in the video.” Nevertheless, the App. Div. court deemed the error harmless because of the trial court’s limiting instruction and the overwhelming proof of defendant’s guilt.

People v. Gordon, 2023 NY Slip Op 06751 (12/27/23) – “The evidence presented at the Sirois hearing [see People v Sirois, 92 AD2d 618], and the inferences that logically flow therefrom, were sufficient to support the court’s determination, under the clear and convincing evidence standard, that the defendant either was responsible for or had acquiesced in the conduct that rendered the complainant unavailable for trial [citations omitted]. Thus, the People were properly allowed to introduce the complainant’s grand jury testimony as part of their direct case….”

3rd Department

People v Knapp (Bryan), 2023  NY Slip Op 05168  (10/12/23) – Conviction of Coercion in the First Degree (Penal Law § 135.65 [1]) reversed and that count of the indictment dismissed because People’s proof at trial did not conform to the indictment’s allegations. Indictment alleged that defendant induced the victim to provide explicit photographs of herself. “[T]he victim testified at trial that she displayed her breasts to defendant via [a] hole in the wall, but she never provided him with any photographs. Since no evidence was presented that the victim provided photographs as specified in the indictment, the prosecution’s proof was insufficient.”

Cross-examination

1st Department

People v Stallings (Davon), 2023 NY Slip Op 04937 (10/3/23) – Prosecutor should not have elicited testimony on cross-examination of defense witness that defendant was incarcerated at the time of trial. But trial court immediately gave curative instruction to the jury that alleviated any prejudice to this lone reference to defendant’s inmate status.

Summation

2nd Department

People v Leon, 2023 NY Slip Op 06381 (12/13/23) – Prosecutor’s remarks that the “presumption of innocence was gone” (see People v Alfaro, 260 AD2d 495, 496; see generally People v Green, 144 AD3d 589; People v Hatchcock, 96 AD3d 1082) and evoking the jury’s sympathy for the victims (see People v Cunningham, 171 AD3d 1207; People v Cherry, 163 AD3d 706; People v Gurdon, 153 AD3d 1430), were improper, but harmless in light of overwhelming evidence of guilt.

People v Vera, 2023 NY Slip Op 06758 (12/27/23) – New trial ordered on Batson grounds; Second Department also criticized trial prosecutor for declaring, “I’m here asking you to strip [the defendant] of his presumption of innocence because, ladies and gentleman, he’s not” (see People v Smith, 288 AD2d 496, 497).”

4th Department

People v Cooley, 2023 NY Slip Op 05066 9 (4th Dept 10/06/2023) – By failing to object during the prosecutor’s summation, defendant failed to preserve claim that allegedly improper comments made by the prosecutor during summation deprived him of a fair trial (see People v Graham, 171 AD3d 1566, 1570 [4th Dept 2019], lv denied 33 NY3d 1104 [2019]). In any event, comments were a “fair response to the comments made by the defense or fair comment on the evidence,” (People v Palmer, 204 AD3d 1512, 1514 [4th Dept 2022], lv denied 38 NY3d 1190 [2022]).

Conflict of Interest-Appearance of Impropriety

3rd Department

People v Mero (Edward), 2023 NY Slip Op 06000 (3d Dept 11/22/23) – Unbeknownst to defendant at the time, his trial attorney had a business relationship with an Assistant District Attorney who was actively involved in defendant’s prosecution. Defense counsel was paying the ADA to ghostwrite appellate briefs for a number of her clients convicted in counties other than where the moonlighting ADA was then a prosecutor.

Defendant filed a CPL 440.10 motion to vacate the judgment of conviction based on that conflict. The relationship here, however, did not pose an actual conflict, but rather a potential conflict. In that situation, defendants have the heavy burden of establishing that “the potential conflict of interest affected or operated on , or bore a substantial relation to the conduct of the defense.” The trial court made a credibility determination, and there was nothing on the face of the record to show that the representation was affected by the undisclosed business relationship. Consequently, the 3rd Department affirmed the denial of the 440 motion.

Miscellaneous

Sentencing – Forfeiture

People v Gaddy (Breonna), 2023 NY Slip Op 06170 (3d Dept 11/30/23) – A negotiated plea and sentence to a felony may include civil forfeiture of the instrumentality or proceeds of the crime if the prosecution and defense agree to that as a condition of the plea. However, where the prosecutor states during the plea proceeding that the prosecution will be seeking voluntary forfeiture of all of the money seized at the time of defendant’s arrest (which amounted to $832.00), but defendant never specifically agreed to that forfeiture during the plea colloquy, the court erred in ordering forfeiture.

Also, an order of forfeiture should be entered; forfeiture is not a component of the sentence. The Appellate Division also noted that the prosecution had not sought forfeiture pursuant to Penal Law Article 480.

“Hyperbolic” press release
Court reserved decision on defense motion for order directing U.S. Attorney’s Office to remove press release from its website. But because it found some of the language to be “gratuitously hyperbolic,” court advised government to consider excising or modifying that language. United States v Watson, 23-CR-82(EK) (EDNY 11/6/23).
The press release has been amended to remove, e.g., the characterizations of the individual defendant as a “con man” and his company as “a criminal organization.”

Also see Matter of Soares, 97 AD3d 242 (3rd Dept 2012) (press release criticizing the decision of a judge in a pending criminal matter deemed conduct prejudicial to the administration of justice in violation of Rule 8.4 (d); D.A. publicly censured).

Disciplinary & Other Proceedings/Sanctions

3rd Department

Attorney, suspended since 2009 for failing to comply with NY’s registration requirements, disbarred after he was disbarred in California, in part because he falsely claimed he had fulfilled CLE requirements there. He repeatedly failed to respond to the Grievance Committee here in New York. Matter of Jose Castillo Escano, 2023 NY Slip Op 05574 (3rd Dept 11/2/2023).

Attorney, admitted in 2011, did not disclose — while he was awaiting admission — that he had been charged with misdemeanor DWI, pleaded guilty to VTL violation, and was charged with DWI and leaving scene, took a plea to violation and pleaded responsible to university violation. This dereliction was compounded by his stance and conduct during the disciplinary proceeding. He now stands suspended from the practice of law for 1 year. Matter of Jonathan Chase Dunsmoor, 2023 NY Slip Op 05573 (3rd Dept. 11/2/2023)

News From Other States

Discovery-related matters

Colorado Murder indictment reduced as a discovery sanction
(statute similar to New York CPL 245.80)

People v Tippet, 2023 CO 61 (public citation) (Colo. 12/11/2023) – On People’s interlocutory appeal, a 4-3 majority of Colorado Supreme Court upheld trial court’s reduction of top count charge of Murder 1 to Murder 2. Trial court properly considered relevant factors, including history of repeated discovery violations by the prosecution in this and other cases. Court held that the greater statutory power to dismiss a charge as a discovery sanction includes the lesser power to reduce a charge.

Brady violations
In re Mary Dobbie and In re Reagan Taylor, Docket No. 21-BG-0024, citation not yet available (D.C. Ct of Appeals 12/7/2023) – Board on Professional Responsibility found that AUSAs’ failure to turn over impeachment materials warranted 6-month suspension. Court modified that to 1-year probationary term because of, inter alia, ill-advised guidance from the AUSAs’ supervisors & AUSAs’ lack of bad faith and otherwise unblemished records.

Other prosecutorial misconduct issues

A former veteran prosecutor in Arizona has been suspended for 2 years because she initiated and pursued false felony charges against protestors demonstrating after the police killings of George Floyd (Minneapolis) and Dion Johnson (Phoenix). Matter of April Arlene Sponsel, PDJ Case No. 2023-9018 ,citation not yet available (12/24/23).

Kentucky Supreme Court approved stipulated 1-year suspension of former elected Commonwealth’s Attorney (county prosecutor) for presenting false evidence to a grand jury; suspension ordered to run consecutively to previously imposed 5-year suspension for other prosecutorial misconduct. Richard Bowling v Ky Bar Association, Case No. 2023-SC-0444, citation not yet available (Ky. 12/14/23).

Former 3-term elected District Attorney suspended from practice for 1 year and ordered to pay costs. Wisconsin’s Supreme Court found record supported findings that, while the D.A., he was frequently intoxicated or otherwise impaired both in court and in the office; routinely slept in the office during business hours; also slept through several court hearings; repeatedly made inappropriate sexual comments to female employees of his office; and subjected one particular subordinate to unwanted sexual contact. In the Matter of Disciplinary Proceedings Against Gary King, 2023 WI 77 (public citation) (Wis. 12/15/23).

Miscellaneous attorney misconduct

Impersonating a prosecutor to evade a DWI arrest
In the Matter of Justin B. McGiffen, Supreme Ct Case No. 22S-DI-303 (Ind. 12/7/23) – Former county prosecutor displayed badge from the County Prosecutor’s Office during a roadside stop for suspected drunk driving and then tried unsuccessfully to prevent jail staff from confiscating the badge. Suspended from the practice of law for 60 days (had been on interim suspension since October 2022 after pleading guilty to impersonation of a public servant).

Blind reliance on ChatGPT leads to 90-day suspension
People v Zachariah C. Crabill, 23PDJ067 (11/22/23) – Before filing his motion to set aside a civil judgment, Crabill did not read the cases that ChatGPT had generated or otherwise attempt to verify that the citations were accurate; when judge questioned the citations, Crabill falsely claimed that one of the firm’s legal interns was responsible for the legal research; he owned up to using ChatGPT a week later. Colorado’s Presiding Disciplinary Judge approved the stipulation whereby Crabill agreed to 90-day suspension and 2-year professional probation conditioned upon specified terms.

SCOTUS Code of Conduct

New CLE requirement for all attorneys starting 2023

To read the new CLE cybersecurity requirements and an article on this, see: