Ethics Watch 3rd Quarter 2022


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3rd Quarter 2022 Ethics Decisions

Brady/Giglio/Rosario & Other Discovery Issues

1st Department

People v Hatchett (Jermaine), 2022 NY Slip Op 04282 (1st Dept 7/5/22) – Because People had not given CPL 710.30 notice, prosecution should not have been permitted to introduce evidence of defendant’s false statement to the police that someone had shot him. But error deemed harmless in light of overwhelming evidence “establishing defendant’s knowing and unlawful possession of the pistol with which he accidentally shot himself.”

2nd Department

People v Kelly (Lorenzo), 2022 NY Slip Op 05218 (2d Dept 9/21/22). For the first time, the Second Department — citing to, e.g., People v Fisher, 28 NY3d 717 (2017) — has squarely held that a guilty plea does not forfeit the right to seek review of an alleged Brady violation. And “[t]o the extent that our prior decisions hold that a defendant forfeits the right to seek review of an alleged Brady violation by pleading guilty they are no longer to be followed.” People v Kelly (Lorenzo), 2022 NY Slip Op 05218 (2d Dept 9/21/22).

Grand Jury

3rd Dept

People v. Taylor (Mesha), 2022 NY Slip Op 04327 (7/7/22) – Court rejected defendant’s claim that the integrity of the grand jury was impaired by the prosecutor’s incorrect instructions on the elements of CPW2, specifically, that a prior criminal conviction was an element of that crime. Here, since, the crime charged in the second count of the indictment required proof of a prior criminal conviction, the Appellate Division held that the incorrect instruction did not impair the integrity of the proceeding or create the potential for prejudice to defendant.

People v. Cain (William), 2022 NY Slip Op 05239 (9/22/22) – The Third Department first ruled that defendant’s challenge to the denial of his motion to dismiss the indictment survived his guilty plea, and noted the issue raised on appeal had been preserved by the dismissal motion based on the same ground. It then agreed the shackling of defendant’s hands when he testified before the grand jury impaired its integrity. See CPL 210.35 (5). The prosecution failed to meet its obligation to establish an adequate basis, outside the presence of the grand jurors, for shackling; the grand jury minutes provided no relevant information to support the use of restraints and were silent on the question of whether shackles were hidden by the table at which defendant sat, as the prosecutor claimed in response to the motion. Lastly, no cautionary instructions were given to the grand jurors concerning the shackles, and “the evidence was not so overwhelming to eliminate the potential for prejudice (citations omitted].” The Third Department therefore reversed the conviction and dismissed the indictment without prejudice to a re-presentment to another grand jury.

Direct

4th Dept

People v Castro (Jose)2022 NY Slip Op 04234 (7/1/22) – Court rejected defendant’s contention that a police officer should not have been allowed to identify him at trial from a surveillance video. The People presented evidence that the officer was familiar with defendant from prior interactions and that defendant’s appearance had changed since the incident. “‘A lay witness may give an opinion concerning the identity of a person depicted in a surveillance

if there is some basis for concluding that the witness is more likely to correctly identify the defendant from the

than is the jury’ ” (People v Graham, 174 AD3d 1486, 1487-1488 [4th Dept 2019], lv denied 34 NY3d 1016 [2019]; [other citation omitted]).”

People v Lopez-Sarmiento (Jose)2022 NY Slip Op 04493 (7/8/22) – “Contrary to defendant’s contention, County Court properly admitted evidence regarding defendant’s prior harassment conviction stemming from an unrelated incident during which he threatened the victim with a knife. That evidence was relevant to the issue of defendant’s intent and the lack of mistake or accident (see People v Dorm, 12 NY3d 16, 19 [2009]; People v Simpson, 173 AD3d 1617, 1619 [4th Dept 2019], lv denied 34 NY3d 954 [2019]). Further, the court properly ‘balanced the probative value of the evidence against its potential for prejudice . . . and its instructions to the jury minimized any prejudicial effect’ [citations omitted].”

People v Jones (Jerry)2022 NY Slip Op 05445 (9/30/22) – Convicted of murder in the second degree, defendant claimed the trial court erred in permitting two prosecution witnesses to testify regarding an order of protection that the victim had against the defendant. Affirming the conviction, the 4th Dept. held that the error, if any existed,  was harmless in light of the overwhelming evidence of defendant’s guilt, and “there is no ‘significant probability . . . that the jury would have acquitted . . . defendant had it not been for’ the court’s presumed error in admitting the challenged testimony.” Each witness testified only briefly regarding the existence of the order of protection, and defendant acknowledged the order of protection (and the underlying altercation) in his post-arrest statements, which the jury heard. Further, there is ‘nothing in the record [that] indicates that the jury focused on the challenged testimony or was in any way swayed by it’ [People v Hartsfield, 204 AD3d 1502, 1505 (4th Dept 2022)].”

Cross-examination

4th Dept

People v Smith (Reddell)2022 NY Slip Op 04494 (7/8/2022) – Defendant contended that his Fifth Amendment right against self-incrimination was violated by the trial court’s ruling, which would have allowed the People to cross-examine him as to who he was with during the incident in question. His Fifth Amendment claim was based upon the fact that he was under federal indictment for associating with gang members during the same incident with which he was charged in state court. The Fourth Department rejected this argument: “[A]lthough the facts at issue could incriminate defendant in the pending federal charge, that ‘charge was not a collateral matter but, rather, was directly relevant to and probative of the charges at issue’ (People v Soto, 70 AD3d 981, 981 [2d Dept 2010], lv denied 15 NY3d 757 [2010]).”

Summation

2nd Dept

People v Holiday (Alshawn), 2022 NY Slip Op 04645, 207 AD3d 658 (07/20/22) – Court held that the prosecutor’s comments on summation “concerning the defendant’s admission to the crimes to a witness with a criminal record were fair response to defense counsel’s characterization of that witness as a ‘career criminal.'” Regarding other summation arguments complained about on appeal, the court found them unpreserved but went on to say that the statements were, “for the most part, fair response to defense counsel’s arguments that the witnesses were lying. The prosecutor’s comment that ‘if [the witnesses] are lying, then that means that the real killer is out there somewhere on the streets of Brooklyn and they’re giving him a pass’ was inflammatory and better left unsaid, but did not deprive the defendant of a fair trial (see People v Williams123 AD3d 1152 [2014], affd 29 NY3d 84 [2017]).”

People v Drago (Annmarie), 2022 NY Slip Op 04561 (07/13/22) – Criminally negligent homicide conviction reversed because the cumulative effect of partially unpreserved prosecutorial misconduct deprived defendant of a fair trial, despite the fact that video evidence showed defendant striking the victim with her vehicle. Here, “the jury was called upon not only to determine what actions the defendant took, but also, whether such conduct was sufficiently “blameworthy” as to rise to the level of criminally negligent homicide.” The “blameworthy” determination was unfairly prejudiced by the prosecutor’s summation comments that inflamed the jury’s emotions, failed to stay within the four corners of the evidence, and encouraged the jury to rely upon irrelevant facts in reaching its decision [citation omitted].” Among other things, the prosecutor:

  • mischaracterized the evidence relating to the charge of criminally negligent homicide and confused the jury by “repeatedly using language to suggest that the defendant’s conduct in striking Rodriguez with the vehicle was intentional or reckless. Specifically, the prosecutor used language such as ‘conscious, blameworthy choices,’ ‘‘knowingly commit blameworthy acts,’ ‘took a risk that took [Rodriguez’s] life,’ ‘you don’t get to knowingly choose to do something wrong’ [emphasis added by App. Div.].”
  • “continually denigrated the defense, referring to their theories repeatedly as ‘excuses’ and ‘garbage’ and falsely [described a defense argument]”
  • sought to evoke sympathy by using terms like “grieving mother” and “murdered daughter”
  • and throughout the course of his summation, “referred to conduct not relevant to the driving conduct that formed the basis of the criminally negligent homicide charge The prosecutor compounded the prejudicial effect of this error by repeatedly using inflammatory and emotional language, and assuming facts not in evidence….”

People v Medina (Ricardo), 2022 NY Slip Op 04566, 207 AD3d 570 (07/13/2022) – Aside from modifying the judgment by dismissing one count on unrelated grounds, the Second Department addressed several summation comments. For instance:

  • “The prosecutor’s comments that one of the complainants had no motive to lie were fair responses to the summation by defense counsel (see People v Beaupre170 AD3d 1031, 1033 [2019]; People v Marcus112 AD3d 652, 653 [2013]). Likewise, the prosecutor’s comment that the defendant “sucker punched” one of the complainants was a reiteration of the testimony of one of the other complainants at the trial and was not inflammatory (see generally People v Dumervil205 AD3d 923, 924-926 [2d Dept 2022]).”
  • The prosecutor’s comment that one of the complainants feared that he would never see his child again was based on the evidence… and relevant to the charge of menacing in the second degree [citations omitted].”
  • “Although references to race generally should be avoided so as not to arouse racially prejudiced attitudes or undermine the jury’s dispassionate and objective consideration of the evidence (see People v Thomas129 AD2d 596, 597 [1987]), here, the prosecutor’s comment that the defendant did not like the fact that one of the complainants, a white man, was dating a black woman, was not improper. The statement was based on evidence in the record and was relevant to show the basis for the altercation at issue (see People v Dominguez275 AD2d 468, 469 [2000]).”
  • “Finally, although the prosecutor’s comments about one of the complainant’s work with disabled children—elicited at trial without objection—were improper and designed to appeal to the jury’s sympathy…, these comments did not deprive the defendant of a fair trial and any other error in this regard was harmless, as there was overwhelming evidence of the defendant’s guilt as to all of the counts except, as previously noted, assault in the third degree, and no significant probability that any error contributed to the convictions [citations omitted].”

3rd Dept

People v. Green (Christopher), 2022 NY Slip Op 05353(9/29/22) – Although the Appellate Division affirmed the sex offense convictions, this case serves as a reminder that prosecutors need to be careful to accurately state the evidence in summation. Here, the Third Department found that defense counsel was not ineffective for failing to object when the prosecutor overstated the results of the DNA analysis in summation inasmuch as the improper remark was ‘a direct response to defendant’s summation and did not constitute a flagrant and pervasive pattern of prosecutorial misconduct that would deprive defendant of due process.’

Conflict of Interest-Appearance of Impropriety

2nd Dept

People v Drago (Annmarie), 2022 NY Slip Op 04561 (07/13/22) – While defendant’s criminally negligent homicide conviction was reversed for prosecutorial misconduct, the Second Department rejected the defendant’s claim that the DA should have been recused and a special prosecutor appointed. The defendant failed to show “actual prejudice or so substantial a risk thereof as could not be ignored” (People v Adams, 20 NY3d 608, 612), or an appearance of impropriety justifying disqualification, because the DA had a professional relationship with the victim. (citing People v Wynn, 248 AD2d 494; see also Matter of Soares v Herrick, 20 NY3d 139, 146-147).

Miscellaneous

4th Dept

People v Baek (Richard)2022 NY Slip Op 04263 (7/1/22) – Rape 3 conviction reversed, indictment dismissed with leave to re-present to another Grand Jury, because the indictment, as amplified by the bill of particulars, was duplicitous. The indictment charged only one count of rape, but the bill of particulars alleged two separate acts of rape occuring three hours apart. Also the trial testimony alleged two separate acts. “Thus, while the indictment charged only one criminal act, the jury heard evidence at trial of two criminal acts, with no specification from the court or the prosecutor as to which act they were to consider when rendering a verdict. Even if the trial evidence narrowed the scope of defendant’s conduct, and here it did not, that is irrelevant. Defendant was entitled to pretrial notice of the charges so that he would be able to adequately prepare a defense [internal punctuation & citations omitted].”

People v Stefanovich (Joseph)2022 NY Slip Op 04241 (7/1/2022) – Convicted of 1st-degree rape, defendant claimed that the indictment should have been dismissed based upon more than 6 years of preindictment delay. The Fourth Department disagreed, finding that three of the five factors enumerated in People v Taranovich, 37 NY2d 442 (1975), favored the People: gravity of the charge; the fact that defendant was not incarcerated prior to indictment; and the lack of prejudice to the defendant. Although defendant asserted that the extensive delay affected his ability to located potential alibi witnesses, defendant did not employ an alibi defense at trial. Rather, “he testified that he had the sexual intercourse was consensual and there were thus no potential alibi witnesses to be found. Moreover, considering that by defendant’s own account the sexual intercourse took place in the woods with no one else around, there were no witnesses defendant could have found to corroborate his testimony that the encounter was consensual. Under the circumstances, the court could not conceive of what defendant could or would have done differently had he been charged in a more timely manner. Thus, defendant’s conclusory assertions of prejudice were insufficient to demonstrate that his defense was impaired by reason of the delay, and the complete absence of prejudice in this case weighs most heavily against him.

People v Jones (Jerry)2022 NY Slip Op 05445 (9/30/2022) – Convicted of second degree murder, defendant argued that the People should not have been allowed to amend the bill of particulars (prior to jury selection) so as to expand the time frame within which the crime occurred.  Court found no merit to this claim: the amendment was done before trial, as authorized by CPL 200.95 (8), and the amendment did not prejudice the defendant or alter the theory of the People’s case.

Disciplinary & Other Proceedings/Sanctions

  • First Department disbarred Georgia defense attorney under the doctrine of reciprocal discipline set forth in Judiciary Law § 90(2) and 22 NYCRR 1240.13. The attorney — who had essentially consented to her disbarment in Georgia, because she had forged the judge’s initials on a draft order that would have permitted her client to obtain a concealed carry permit — did not object to the disciplinary proceedings here in New York. Matter of Rogan (Elizabeth), 2022 NY Slip Op 04281 (1st Dept 2022).

News From Around the US

  • By stipulation approved on September 21, a former Colorado District Attorney — who resigned in July in the face of a recall referendum and investigative report of the State’s Attorney General — has agreed to be disbarred. Among the stipulated facts: he lied to victims, witnesses, and judges about the status of cases and victim/witness availability, and initiated a criminal prosecution against his predecessor, who was critical of how the DA’s Office was operating, without seeking the appointment of a special prosecutor.

New CLE requirement for all attorneys starting 2023

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