Ethics Watch 4th Quarter 2018 (January 7, 2019)


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Brady/Giglio/Rosario & Other Discovery Issues

1st Department

People v Boateng, 2018 NY Slip Op 06495 (10/2/18) – “The court providently exercised its discretion in declining to impose any sanction for the People’s loss of a recording of a 911 call. The record supports the court’s finding that the recording was not Rosario material (see CPL 240.45; People v Rosario, 9 NY2d 286 [1961], cert denied 368 US 866 [1961]), because it was ‘made by an unknown non-witness on behalf of the non-English-speaking complainant’ and ‘the record does not support defendant’s contention that the unknown non-witness was actually translating the complainant’s words’ (People v Pabon, 213 AD2d 289, 289 [1st Dept 1995], lv denied 86 NY2d 739 [1995]). In any event, even if the recording could be viewed as Rosario material, there was no ground for a sanction, because the loss was inadvertent and defendant made no showing of prejudice, in light of the availability of the Sprint report (see e.g. People v Diaz, 47 AD3d 500, 500-501 [1st Dept 2008], lv denied 10 NY3d 861 [2008]).”

People v Desselle, 2018 NY Slip Op 08252 (12/4/18) – Court properly denied defendant’s constitutional speedy trial motion. While the 28-month delay was “substantial,” it was attributable to both parties. “While most adjournments were either on consent or were otherwise satisfactorily explained, the People failed to provide an adequate reason for their delay in responding to defendant’s motion to compel production of certain medical records and in producing the records. Nevertheless, the charges were very serious and, although defendant was incarcerated the entire time, he has not demonstrated how his defense was impaired by the delay. This is not a case where the delay, and in particular the portion attributable to the People, was so egregious as to warrant dismissal regardless of prejudice.”

2nd Department

People v Johnson, 2018 NY Slip Op 07328 (10/31/18) – Court found no merit in defendant’s claim that the trial court should have granted his motion for a mistrial on the ground that the People did not “timely disclose information pertaining to a pending criminal action against a prosecution witness…. The defendant failed to demonstrate that he suffered any prejudice from the delay in disclosure …, and the information was provided to the defendant before cross-examination of the relevant witness [see People v Sanchez, 144 AD3d 1179, 1180 (2d Dept 2016); People v King, 298 AD2d 530, 531 (2d Dept 2002)].”

People v Wade, 2018 NY Slip Op 08044 (11/21/18) – Defendant contended he was entitled to reversal because the the People failed to “turn over documents created in connection with investigations conducted by the Internal Affairs Bureau (hereinafter IAB) and federal civil lawsuits regarding two police officers who testified against the defendant at trial.” The Appellate Division court — citing to People v Garrett, 23 NY3d 878, 886 (2014), and People v Rispers, 146 AD3d 988, 989 (2d Dept 2014) — agreed that the documents in question were “favorable to the defendant for the purpose of impeaching [the two officers’] testimony.” But it affirmed the judgment because

  • “the record establishes that the defendant’s trial attorney had knowledge of most of the relevant documents related to the IAB investigations and federal civil lawsuits regarding the two officers prior to the defendant’s trial,” and “‘evidence is not deemed to be Brady material when the defendant has knowledge of it’ [People v Francois, 137 AD3d 935, 936 (2d Dept 2016), quoting People v Rodriguez,223 AD2d 605, 606 (2d Dept 1996)]”
  • “there was no ‘reasonable possibility’ that, had any purported official documents relating to the IAB investigations and the federal civil lawsuits been disclosed to the defendant, the result of the trial would have been different [citations omitted]. The defendant’s trial attorney had sufficient information regarding the allegations of misconduct against the two officers and had a meaningful opportunity to use that information to cross-examine the officers.”

People v Wright, 2018 NY Slip Op 08158 (11/28/18) – Because it was not raised in the trial court, Wright’s claim that the People’s alleged failure to disclose that a prosecution witness collected, before the trial, a $2,000 reward from the the NYPD’s Crime Stoppers Program had not been preserved for appellate consideration, and was meritless. Evidence affecting credibility falls within the ambit of Brady and its progeny, but here

  • “there is no evidence that the prosecution was aware of the $2,000 reward at the time of the defendant’s trial, as the identity of individuals providing information to, and collecting rewards from, Crime Stoppers is kept confidential.”
  • the record demonstrated that the fact the witness received approximately $12,000 worth of benefits, was disclosed to the defense, and his attorney “engaged in extensive cross-examination of the witness regarding this issue, as well as that witness’s extensive criminal history, current pending charges, and inconsistent statements regarding the shooting.” Finding “no reasonable possibility that additional cross-examination of that witness concerning the $2,000 reward would have yielded a different result,” the Second Department declined to order reversal in the interest of justice.

3rd Department

People v Matteson2018 NY Slip Op 07976 (11/21/18) – Convictions for strangulation in the second degree, aggravated family offense in the second degree, and assault in the third degree, affirmed, but remitted for Supreme Court to hold a hearing on the motion where “the People provided some evidence of, but did not conclusively establish, their entitlement to success on a statutory speedy trial motion, and that issue would be dispositive on defendant’s CPL 440.10 motion, a hearing was necessary to determine whether defense counsel actually requested or consented to any or all of the numerous adjournments as alleged by the People (see People v Rousaw, 151 AD3d 1179, 1180 [2017]).”

People v Lewis2018 NY Slip Op 07980 (11/21/18) – Following a hearing on remittal, County Court determined that Roman [a fellow inmate witness at defendant’s trial] was allegedly threatened by prison officials, as opposed to law enforcement officers affiliated with an outside police agency, and, as such, the People were not obliged to disclose any evidence within the knowledge of those officials. Based on those findings, the court denied defendant’s CPL 440.10 motion to vacate defendant’s conviction for first degree manslaughter for stabbing to death another inmate while incarcerated. With the Court’s permission, defendant appealed, and “the question distilled to whether the People had a duty to learn of any such conduct and could be held to have suppressed knowledge of it.” Denial of the 440.10 motion was affirmed:

“Although the State Police was the lead agency investigating this homicide, defendant does not assert that any State Police investigator was aware of the alleged coercion. Defendant infers that the person who Roman averred was present for the coercion — a person Roman called ‘the Investigator General,’ a title that does not exist — must have been the lead investigator from the Department of Correctional Services (hereinafter DOCS) Office of the Inspector General (hereinafter the IG). Roman did not testify at the hearing, however, and the identity of that person was never established. We cannot rely on mere inferences to identify him. As noted by County Court, it is difficult to determine whether a person was acting as an agent of the police when we do not know that person’s identity or, concomitantly, his exact role in the investigation.”

“The record contains some evidence that would support a conclusion that the IG investigators were agents of the police, but other evidence that would support a contrary conclusion. Defendant attempts to fill in the gaps and tip the balance by relying on supposition and inferences. Considering the conflicting evidence, defendant did not meet his burden of proving, by a preponderance of the evidence (see CPL 440.30 [6]), that the IG investigators were working as an arm of law enforcement on the night of the incident, so as to impute to the People any knowledge of an IG investigator that Roman may have been threatened or coerced. As defendant did not prove that the People committed a Brady violation (People v Lanfranco, 124 AD3d at 1145-1146; People v Ross, 282 AD2d at 931), County Court correctly denied his CPL 440.10 motion.”

Grand Jury

3rd Department

People v Malloy, 2018 NY Slip Op 07977 (11/21/18) – In affirming Malloy’s Murder 2 conviction, the 3rd Department rejected his contention that the indictment should be dismissed, pursuant to CPL 210.35(5), because the integrity of the Grand Jury proceeding was impaired by the fact that there were 3 instances where a grand juror acknowledged s/he knew a GJ witness.

“In each instance, the prosecutor inquired whether there was anything concerning the grand juror’s knowledge of the witness that would lead the grand juror to believe that he/she could not be fair and impartial, and each answered in the negative [citations omitted]. While we agree with defendant that the precise nature of the relationship between each grand juror and the particular witness should have been further explored by the prosecutor [see generally People v Revette, 48 AD3d 886, 887-888 (3rd Dept 2008)], we do not find the exceptional remedy of dismissal to be warranted under the facts and circumstances of this case. The salient evidence against defendant during the grand jury presentment came not from the testimony of any of the civilian witnesses who were present on the evening of the incident, but from the extensive surveillance video footage that captured the shooting itself and the events that unfolded both prior and subsequent thereto. * * * Mindful that ‘the statutory test, which does not turn on mere flaw, error or skewing . . .[,] is very precise and very high’ [People v Darby, 75 NY2d 449, 455 (1990)], we find no ‘articulable likelihood of [or] potential for prejudice’ stemming from the grand jurors’ prior knowledge of the witnesses in question [People v Adessa, 89 NY2d 677, 686 (1997)]” (other citations omitted).”

People v Perkins2018 NY Slip Op 07972 (11/21/2018) – convictions for attempted murder in the second degree, criminal possession of a weapon in the second degree (two counts), attempted assault in the first degree, and reckless endangerment in the first degree reversed, on the law (finding that County County improperly precluded alibi witness), and remitted for a new trial. Court found, however, that the grand jury proceeding was not defective where:

“In response to defendant’s omnibus motion alleging grand juror bias, and after being instructed by County Court (Hoye, J.) to specifically respond to defendant’s allegations of bias, the People submitted a letter from an Assistant District Attorney acknowledging that a correction officer from the Schenectady County jail was a member of defendant’s grand jury and voted in the matter. The letter stated that all grand jurors were advised that, if they knew a witness or a defendant, they were to abstain from voting if they could not be fair and impartial. The People also proffered, for in camera review, an affidavit from the grand juror that attested to his ability to judge defendant’s case fairly and impartially. Accordingly, the People’s letter to County Court, together with the affidavit from the grand juror, are sufficient to overcome defendant’s speculative claim of bias (see People v Wormuth, 35 AD2d 609, 609 [1970]; compare People v Revette, 48 AD3d 886, 887-888 [2008]; cf. People v Gryner, 116 AD3d 1247, 1248 [2014]).”

Voir Dire

1st Department

People v Santiago, 2018 NY Slip Op 06867 (10/16/18) – “The prosecutor’s hypotheticals explored whether prospective jurors would be able to draw inferences from defendant’s behavior and the surrounding circumstances to determine his intent, and these hypotheticals were not unduly prejudicial. Furthermore, the record does not support defendant’s claim that the prosecutor misstated the law. On the contrary, defense counsel did make misleading statements about the law, causing the court to take appropriate actions that were not prejudicial.”

People v Nuckols, 2018 NY Slip Op 08541 (12/13/18) – Court properly granted the prosecution’s Batson application regarding defense counsel’s exercise of a peremptory challenge. “‘Although defense counsel claimed that the juror’s pregnancy could have made her emotional’ and potentially preclude her, for medical reasons, from fully participating in the trial, ‘counsel never questioned the juror about the effects of her pregnancy'” (People v Young, 35 AD3d 324, 325 [1st Dept 2006], lv denied 8 NY3d 992 [2007]; see also People v Kendall, 27 AD3d 355, 356 [1st Dept 2006], lv denied 6 NY2d 895 [2006]; People v McNair, 26 AD3d 245, 246 [1st Dept 2006], lv denied 6 NY3d 896 [2006]), or even whether the juror was, in fact, pregnant.”

3rd Department

People v Malloy, 2018 NY Slip Op 07977 (11/21/18) – In response to defense counsel’s protest, the trial prosecutor said that he exercised a peremptory challenge to strike prospective juror No. 13 because of her “dismissive” and “rude” “attitude” in response to his questions. In addition to his perception that his “interaction with her was not favorable at all”, “the prosecutor expressed concern with what he deemed to be an abnormal response by juror No. 13 to his inquiry as to why she believed she would be a good juror.” This explanation was, on its face, “race-neutral and thus satisfied the People’s burden under step two” of the procedure required under Batson and its progeny. See, e.g., People v Hernandez, 75 NY2d 350, 356 (1990), aff’d 500 US 352 (1991).

The third and final step of the Batson inquiry “requires the trial court to make an ultimate determination on the issue of discriminatory intent based on all of the facts and circumstances presented” [People v Smocum, 99 NY2d 418, 422 (2003); People v Hecker, 15 NY3d 625, 656 (2010).

“Here, although Supreme Court initially expressed skepticism as to — and, in fact, challenged — the prosecutor’s stated reasons, the court made further inquiries of the prosecutor and heard arguments from both sides before ultimately crediting the prosecutor’s race-neutral explanation [citation omitted]. That determination, which was necessarily based in large part upon Supreme Court’s assessment of the prosecutor’s credibility, is entitled to great deference on appeal [internal punctuation and citations omitted]. Moreover, while the sufficiency of defendant’s prima facie showing indeed became moot once the prosecutor offered his race-neutral reasons for the peremptory strike at issue, ‘the strength or paucity of the step one showing is a factor that should be considered in determining whether the record as a whole supports a finding of pretext’ [Hecker, 15 NY3d at 660; also see Snyder v Louisiana, 552 US 472, 478 [2008]). The prima facie showing in this case was very weak, as the prosecutor did not challenge the only two black jurors on the first panel, and the only other black juror on the second panel to that point had been struck for reasons so compelling that even defense counsel agreed removal was appropriate [citations omitted]. Considering ‘all of the circumstances that bear upon the issue of racial animosity’ [citations omitted] and mindful that ‘the best evidence [on that issue] often will be the demeanor of the attorney who exercises the challenge’ (Hernandez v New York, 500 US 352, 365 [1991]), we cannot conclude that defendant met ‘his ultimate burden of showing that the reasons given by the People were pretexts for intentional discrimination’ [People v Ardrey, 92 AD3d 967, 970 (3rd Dept 2012) (other citations omitted)].”

Dissenting Justice Clark, however, found that the record did not support the majority’s conclusion concerning step three. Consequently, she would “hold defendant’s appeal in abeyance and remit the matter for further proceedings necessary to satisfy” the mandate that there be an “adequate record ‘reflecting the basis for [the trial court’s] ruling’ [People v Payne, 88 NY2d 172, 184 (1996) (remaining citation omitted)].”

People v Strife2018 NY Slip Op 08385 (12/06/18) – Conviction for DWI and speeding affirmed, but three takeways:

Batson – Defendant challenged the trial court’s Batson ruling (see Batson v Kentucky, 476 US 79[1986]), “contending that the court failed to engage in the requisite three-step process following the People’s use of peremptory challenges to remove all three prospective jurors of color from the first venire panel. Defendant failed to preserve this contention by rendering any objection with respect to County Court’s Batson process at a time when it could have been meaningfully addressed [internal citations omitted].”
Demonstrative HGN video – “Defendant also claims that the People failed to lay a proper foundation for the admission of a demonstrative video depicting the administration of the horizontal gaze nystagmus field sobriety test to an unknown and unrelated third-party individual. Although defendant objected to the video’s admission on various grounds, [*2]no objection was made on this ground and, therefore, defendant’s contention is unpreserved for review (see People v Button, 56 AD3d 1043, 1046 [2008], lv dismissed 12 NY3d 781 [2009]). In any event, defendant’s argument is without merit. The jury was made aware of the demonstrative purpose of the video, that it did not actually depict defendant or the horizontal gaze nystagmus test that he was administered on the evening in question, and, therefore, given the context in which the video was offered, we would find that it “play[ed] a positive and helpful role in the ascertainment of truth” and did not serve to prejudice defendant in any respect [internal citations omitted].”
Failure to preserve evidence – The trial court “erred by failing to provide a permissive adverse inference charge based upon the People’s failure to preserve a copy of the booking room video on the night of defendant’s arrest [internal citations omitted].” “Notwithstanding, given the strength of the evidence against defendant, coupled with the fact that the jury was made aware of the People’s failure to preserve this video and defense counsel was thereafter permitted to comment upon said failure during his summation (see e.g. People v Blake, 105 AD3d 431, 431 [2013], affd 24 NY3d 78 [2014]), in our view, this error was harmless; under the circumstances, there was no significant probability that defendant would have been acquitted but for County Court’s failure to provide a permissive adverse inference charge to the jury (see People v Crimmins, 36 NY2d 230, 242 [1975]; People v Butler, 140 AD3d at 1612; People v John, 288 AD2d 848, 849 [2001], lv denied 97 NY2d 705 [2002]).”

4th Department

People v Davis, 2018 NY Slip Op 07569 (11/9/18) – Rape convictions reversed and new trial ordered because the trial prosecutor did not demonstrate — at the hearing held at the direction of the 4th Dept [153 AD3d 1631 (4th Dept 2017)] — that he had a non-discriminatory reason for striking the African-American prospective juror.

“On remittal, the prosecutor testified that he did not remember his reason for striking the prospective juror at issue, but stated that it had ‘nothing to do with race.’ The prosecutor testified that, instead, ‘there was something on [the prospective juror’s] jury questionnaire . . . that [he] did not particularly like,’ which would have provided a basis for exercising a peremptory challenge if he ‘could not clarify [that] issue’ during voir dire. The prosecutor, however, had no recollection of the subject prospective juror’s actual questionnaire, which, apparently, was not preserved [as it was not offered into evidence]. * * * [T]he prosecutor’s explanation ‘amounted to little more than a denial of discriminatory purpose and a general assertion of good faith’ [People v Dove, 172 AD2d 768, 769 (2d Dept 1991)] [other citations omitted].”

Direct

2nd Department

People v Jones (Lamont), 2018 NY Slip Op 08327 (12/5/18) – In affirming Jones’ convictions of assault and weapon possession charges, the court deemed his contentions “that he was deprived of a fair trial by the introduction of evidence that he was wearing a bulletproof vest at the time of his arrest and that the prosecutor improperly commented on this evidence during summation” to be meritless. “The evidence that the defendant was wearing a bulletproof vest at the time of his arrest was admitted only to show that he had heard the complainant’s threat and believed he needed to protect himself from retaliation by the complainant’s family. The Supreme Court’s limiting instruction to the jury alleviated any prejudice resulting from the admission of this evidence [see People v Bell, 136 AD3d 838, 839 (2d Dept 2016).”

People v Holmes, 2018 NY Slip Op 08954 (12/26/18) – Court held that “the detective’s testimony that [Holmes] was arrested ‘after the lineup was conducted’ constituted improper implicit bolstering of the [lone eyewitness’s] identification testimony because it “could have led the jury to believe that the police were induced to take action as a result of the lineup identification.” See, e.g., People v Holt, 67 NY2d 819, 821 (1986); People v Jones, 131 AD3d 1179, 1180 (2d Dept 2010). Nevertheless, the App. Div. court concluded that the nonconstitutional error was harmless in this case.

“The testimony of the witness identifying the defendant was ‘unusually credit­-worthy’ such that it may be said that there was ‘no substantial issue on the point’ [citations omitted]. Furthermore, the strength of the witness’s identification testimony and the fleeting nature of the improper testimony precluded any significant probability that the jury would have acquitted the defendant had it not been for the improper bolstering [citations omitted].”

Cross-examination

2nd Department

People v Flores, 2018 NY Slip Op 06557 (10/3/18) – Manslaughter 2 conviction reversed, and indictment dismissed (with leave to re-present), because trial court should have charged Criminally Negligent Homicide as a lesser included offense of Manslaughter 1 count — and because of the trial prosecutor’s use of defendant’s post-arrest silence in cross-examining him and on summation.

“Absent unusual circumstances, the People may not use evidence of a defendant’s pretrial silence to impeach his or her testimony at trial [see People v Pavone, 26 NY3d 629, 638-639 (2015); People v Williams, 25 NY3d 185, 191 (2015))]. Here, the defendant correctly contends that the trial court erred in permitting the prosecutor to question him about his post-arrest silence, because, although the defendant initially responded to certain questions asked by the police, he effectively invoked his right to remain silent and offered no information regarding the essential facts of his involvement in the crime [see People v Theodore, 113 AD3d 703, 704 (2d Dept 2014); other citations omitted].”

4th Department

People v Fick, 2018 NY Slip Op 08788 (12/21/18) – A 3-2 majority upheld the convictions for burglary and related offenses even though “the prosecutor exceeded the bounds of propriety by cross­-examining a defense witness regarding an uncharged crime that defendant allegedly committed and by placing his own credibility in issue while doing so.”

Description of the offending conduct from the dissenting opinion: “During his cross­-examination of the defense witness, the prosecutor implied that a month before the commission of the instant crimes, defendant broke the witness’s vehicle windows in retaliation for the witness’s use of drugs that defendant had intended for sale. When the witness denied knowing who broke his windows, the prosecutor stated, ‘I would bet my career that person is in the courtroom’.”

“[T]he dissent is correct that we have previously admonished this prosecutor, [but] the instant trial occurred before that admonition. Therefore, although we strongly condemn the prosecutor’s conduct during cross­-examination, we conclude that it does not warrant reversal here [citations omitted].”

People v Vega, 2018 NY Slip Op 08781 (12/21/18) – People properly permitted to cross-examine defendant, on trial for promoting prison contraband, about the facts underlying his prior conviction for first degree criminal contempt. “The court ‘properly balanced the appropriate factors’ [People v Larkins, 153 AD3d 1584, 1585 (4th Dept 2017) and determined that the probative value of the evidence to be admitted outweighed the risk of unfair prejudice to defendant….”

Summation

Note: Only decisions that describe the nature of the prosecutor’s summation comments challenged on appeal will be found here. Those that shed no light on the comment(s) at issue and where the appellate court says nothing more than, e.g., “defendant’s contention has not been preserved for appellate review and, in any event, is without merit because the complained-of remarks were responsive to defense counsel’s summation” are not included since they offer no truly useful guidance.

1st Department

People v Cordero, 2018 NY Slip Op 08267 (12/4/18) – “The record amply establishes the prosecutor’s good faith basis for attempting to elicit that the victim’s reluctance to testify was the result of witness-tampering attributable to defendant (see People v Bahamonte, 89 AD3d 512 [1st Dept 2011], lv denied 18 NY3d 881 [2012]). The challenged summation remarks were responsive to defense counsel’s attack on the victim’s credibility and constituted fair comment on the evidence.”

2nd Department

People v Flores, 2018 NY Slip Op 06557 (10/3/18) – Manslaughter 2 conviction reversed, and indictment dismissed (with leave to re-present), because trial court should have charged Criminally Negligent Homicide as a lesser included offense of Manslaughter 1 count — and because of the trial prosecutor’s use of defendant’s post-arrest silence in cross-examining him and in closing argument. Although trial counsel did not object to the People’s summation, the Second Department exercised its interest of justice jurisdiction to consider the claim.

“The prosecutor engaged in misconduct throughout his summation, inter alia, by continuously referring to the defendant as a liar, misstating evidence, denigrating the defense, shifting the burden of proof, attempting to arouse the sympathies of the jurors, and vouching for his witnesses’ credibility [see People v Redd, 141 AD3d 546, 548 (2d Dept 2016); People v Singh, 128 AD3d 860, 863-864 (2d Dept 2016)]. The cumulative effect of the prosecutor’s improper comments deprived the defendant of a fair trial [see People v Riback, 13 NY3d 416, 423 (2009); People v Pagan, 2 AD3d 879, 880 (2d Dept 2009)]. Contrary to the People’s contention, these errors are not subject to harmless error analysis (see People v Crimmins, 36 NY2d 230, 238 (1975)].”

People v Powell, 2018 NY Slip Op 06768 (10/10/18) – Murder conviction reversed in the interest of justice, primarily because of the prosecutor’s summation (and defense counsel’s failure to object to any aspect of the People’s closing argument).

“During her summation, the prosecutor stated that the ‘defendant’s DNA was on the safety of that gun,’ and that ‘the science finds him guilty.’ The prosecutor further stated that ‘[t]he DNA has spoken,’ and that ‘[t]he defendant’s DNA, by being on that safety without even taking into account [the witness’s] testimony, makes him guilty.’ This was an overstatement and misrepresentation of the statistical comparison testified to by the People’s expert who performed the DNA analysis of the swab taken from the safety of the murder weapon. * * * ‘In light of the powerful influence of DNA evidence on juries, the opportunity for juror confusion regarding the limited probative value of the DNA methodology employed in this case, and the qualified nature of the test results,’ the prosecutor engaged in misconduct when she misrepresented and overstated the probative value of the DNA evidence by telling the jury that the defendant’s DNA was on the safety of the murder weapon [People v Wright, 25 NY3d 769, 771 (2015)]. As a result, the defendant was deprived of his right to a fair trial [see People v Jones, 134 AD3d 1588, 1589 (4th Dept 2015); cf. People v Ramsaran, 29 NY3d 1070, 1071 (2017)].”
“The prosecutor also engaged in misconduct during her summation when she stated that she met with the [People’s chief witness] on several occasions, and during those times, ‘he did not know that his DNA was on the trigger or the trigger guard or anywhere on that weapon,’ and she ‘did not tell him that the DNA, his DNA was on that gun.’ The prosecutor’s summation also included the following statements: ‘But [the witness] told me in talking about this case in detail, he told me what he did’; ‘He told me that he held that firearm’; ‘Exactly how he told you on this stand when the defendant dropped it, . . . he picked it up and quickly threw it into a black bag so his girlfriend wouldn’t see’; and ‘He’s telling me and he doesn’t even know what I have. Honesty. Straightforward about what happened.’ These statements by the prosecutor improperly encouraged inferences of guilt based on facts not in evidence, improperly injected her own credibility into the trial, and improperly vouched for the credibility of a witness for the People [citations omitted].”

3rd Department

People v Shamsuddin2018 NY Slip Op 08974 (12/27/18) – Conviction for burglary in the second degree affirmed, with Court noting that “although the prosecutor made certain comments during his summation regarding defendant’s failure to provide corroboration of the fact that his wife actually worked in the building adjacent to the Hilton Hotel, said comments did not serve to shift the burden of proof” [internal citations omitted] and remaining alleged improper comments “were either sustained by County Court, constituted a fair comment on the evidence or were otherwise responsive to defense counsel’s summation, questioning the credibility of the People’s witnesses (see People v Williams, 163 AD3d 1160, 1165 [2018]; People v Harris, 162 AD3d 1240, 1243 [2018], lv denied 32 NY3d 937 [2018]), such that ‘the record as a whole fails to disclose that the prosecutor engaged in a flagrant and pervasive pattern of prosecutorial misconduct so as to deprive defendant of a fair trial'”. (People v Devictor-Lopez, 155 AD3d 1434, 1437 [2017] [internal quotation marks and citations omitted]).

Conflict of Interest-Appearance of Impropriety

First Department

People v Ferrer, 2018 NY Slip Op 07356 (11/1/18) – Defendant failed to establish good cause to substitute counsel at the sentencing proceeding. “When defendant made an unfounded ethics complaint against counsel, ‘any conflict was of defendant’s own making, and he was not entitled to circumvent the good cause requirement by creating an artificial conflict.'”

People v Joe, 2018 NY Slip Op 07965 (11/20/18) – Court providently exercised its discretion in denying defendant’s motion to appoint new counsel. The “allegedly coercive conduct by defense counsel amounted to nothing more than frank advice about the consequenceys of going to trial.” And, “[w]hen defendant asserted that his counsel was the law partner of another attorney potentially involved in the case and was thereby conflicted, counsel explained that the partnership had ended years before defendant’s case arose. Counsel’s explanation, even if inartfully stated, fell far short of taking an adverse position.”

People v Udeke, 2018 NY Slip Op 08094 (11/27/18) – “Defendant was not deprived of hsi right to conflict-free counsel as the result of the brief simultaneous representation of defnedant and the victim, by different Legal Aid Society attorneys, in unrelated cases. When the People informed the court that the victim in this case had been arrested on shoplifting charges and had been represented at her own arraignment, a few days earlier, by a Legal Aid attorney, the plea court stated that it intended to relieve Legal Aid from the victim’s case and assign new counsel that very afternoon. Before the court could do so, however, defendant accepted a pending plea offer, pleaded guilty, and was immediately sentenced.”

People v Raspa, 2018 NY Slip Op 08429 (12/11/18) – “In this case prosecuted by the Attorney General because of the District Attorney’s recusal, several assistant district attorneys were properly permitted to participate in the prosecution as special assistant attorneys general. At an early stage of this prosecution, several of defendant’s codefendants were represented, for a period of five days, by a firm that included Cyrus Vance. Nearly four years later, Vance became District Attorney and sought to withdraw from the case, despite having no recollection of meetings or conversations with the codefendants his former firm had represented. The Attorney General’s Office was appointed, and certain New York County prosecutors who had already been working on this highly complex case were cross-designated so they could continue to participate. The Attorney General’s Office instituted extensive firewall protocols to isolate the District Attorney’s office from the cross-designated prosecutors. Defendant does not claim that he was prejudiced by any conflict, but only that his motion to disqualify the cross-designated prosecutors should have been granted on the ground of appearance of impropriety. However, this was not one of the ‘rare situations’ where, even in the absence of prejudice, ‘the appearance of impropriety itself is a ground for disqualification’ (People v Adams, 20 NY3d 608, 612 [2013]). The conflict was remote to begin with, it did not directly involve defendant himself, there was a legitimate reason for the cross-designation of the prosecutors already involved in the case, and there were suitable protective measures.”

Miscellaneous

1st Department

People v Nunez, 2018 NY Slip Op 08754 (12/20/18) – Bribery and conspiracy convictions upheld for defendants, an attorney and paralegal, who were bribing an employee of the Criminal Justice Agency to refer arrestees as potential clients.

Disciplinary & Other Proceedings/Sanctions

3rd Department

Matter of Anonymous, 2018 NY Slip Op 08231 11/29/18 – Despite Committee on Character and Fitness recommendation, applicant was denied admission on motion, with the court finding:

“While we are cognizant of the present financial realities faced by virtually every applicant seeking admission to the bar, we cannot countenance applicant’s apparent unwillingness to address his student loan obligations, and we are skeptical of his purported good faith intentions to satisfy them, particularly given his recent submissions to this Court (see Matter of Anonymous, 61 AD3d 1214[2009]). In other words, our decision does not rest on the existence of applicant’s student loan debt, but rather his indifference regarding it. Accordingly, we deny the application without prejudice to renewal at such time as applicant can submit proof demonstrating a relevant change in circumstances upon which we can conclude that he possesses the requisite character and fitness for admission to the bar in New York.”

Other News

California

State Bar Court judge recommended a 90-day suspension for a San Francisco ADA who failed to disclose evidence in a murder case. And the same prosecutor suspended from Bar for prosecutorial misconduct during murder trial.

District of Columbia

The Dangers Of Not Reading The Bar Magazine

Florida

Former Chief Justice Encourages Judges to Get Off Facebook.

Louisiana

Former federal prosecutor disbarred after posting about cases in comments in news articles.

New York

Lawyer indicted for created fake Facebook pages in candidates’ names to try to influence political races.

Pennsylvania

Disciplinary panel recommended a one-year suspension for former prosecutor over accusations of improper communications with judges and creation of a false Facebook page.

Texas

Texas Bar issues opinion on whether it is ethical for lawyers to seek advice from other lawyers in online forums.

Washington

Prosecutor facing disciplinary hearing regarding his alleged misconduct during a murder trial (appearing on a legal talk show on the eve of closing arguments while the jury was on recess) accepts “something resembling a plea bargain.”

NYPTI Law Updated for 2019