Ethics Watch 3rd Quarter 2019 (October 3, 2019)


Professional Conduct Resources

The Right Thing

Code of Conduct

2019 Criminal Justice Reforms

Listen to a Podcast of this Quarter’s Ethics Watch




Brady/Giglio/Rosario & Other Discovery Issues

3rd Department

People v Seecoomar, 2019 NY Slip Op 05727 (7/18/19) – Because the record did not demonstrate that there was a reasonable possibility that non-disclosure materially contributed to the verdict [see CPL 240.75], the Third Dept held that defendant was not entitled to reversal because the People were unable to turn over a police witness’s lost notes of the narcotics investigation. The officer was apparently a witness called to establish the chain of custody, for at the time the trial prosecutor informed the judge and defense counsel of the snafu, he added that it was his understanding that another police officer had given the evidence provided to the witness. “Although the notes may have potentially provided impeachment evidence,” the 3rd Dept concluded that “their limited value is rendered immaterial given the overwhelming evidence of defendant’s guilt [citations omitted].”

Grand Jury

2nd Department

People v Larrymore, 2019 NY Slip Op 06412 (8/28/19) ~ It was not improper for the People to amend, with judicial permission, the indictment: “the amendment did not change the People’s theory of the prosecution, and served simply to conform the indictment to the evidence presented to the grand jury [citations omitted], ” and this defendant “also has not shown that she was prejudiced by the amendment [see People v Elie, 110 AD3d 1003, 1004 (2d Dept 2013); People v Daum, 278 AD2d 505, 505 (2d Dept 2000)].”

4th Department

Matter of May/June 2018 Oneida County Grand Jury Report[s], 2019 NY Slip Op 06356 (8/22/19) – County Court should not have directed the public filing of CPL § 190.85 (1) (a) grand jury reports that accused 3 county officials of misconduct, non-feasance, neglect.

“‘It is incumbent upon the prosecutor to instruct the [g]rand [j]ury regarding the duties and responsibilities of the public servant … target[ed by] the probe’ [Matter of Second Report of Seneca County Special Grand Jury of Jan. 2007, 59 AD3d 1079, 1080 (4th Dept 2009)]. ‘Without a charge as to the substantive aspects of the official’s duties, it [is] not only impossible for the [g]rand [j]ury to determine that the public servant was guilty of misconduct, nonfeasance or neglect, but impermissible as well, for it allow[s] the [g]rand [j]ury to simply substitute its judgment for that of the public servant’ [Matter of June 1982 Grand Jury of Supreme Ct. of Rensselaer County, 98 AD2d 284, 285 (3d Dept 1983)]. Here, the prosecutor failed to provide the grand jury with any instructions regarding appellants’ substantive duties in office. We therefore reverse the order insofar as appealed from and seal the three reports at issue on appeal.”

People v Ball (James), 2019 NY Slip Op 06295 (8/22/19) – A 3-2 majority upheld County Court’s dismissal of indictment charging defendant with Murder 2 and Manslaughter 1 for the shooting death of his brother-in-law at the threshold of defendant’s home, following physical altercations between the two men inside the house, which the brother-in-law initially had entered through the basement.

“During a recess in the grand jury proceeding, defendant asked the People to deliver to the grand jury foreperson a letter requesting, among other things, that the grand jurors be charged with respect to the justifiable use of physical force in defense of a person pursuant to Penal Law § 35.15 and the justifiable use of physical force in defense of premises and in defense of a person in the course of a burglary pursuant to § 35.20 (3).” The prosecutor handling the grand jury presentment did not, however, deliver the letter to the foreperson; he later instructed the grand jury on the justification defense provided by Penal Law § 35.15, but did not give a Penal Law § 35.20 (3) instruction.

“‘If the prosecutor fails to instruct the grand jury on a defense that would eliminate a needless or unfounded prosecution, the proceeding is defective, mandating dismissal of the indictment’ [People v Graham, 148 AD3d 1517, 1519 (4th Dept 2017); see People v Valles, 62 NY2d 36, 38-39 (1984)]. Under the circumstances of this case, we conclude that an instruction regarding the justification defense pursuant to Penal Law § 35.20 (3) was warranted, and the prosecutor’s failure to provide that instruction impaired the integrity of the grand jury proceeding [see CPL 210.35 (5)]. Furthermore, we conclude that the error was not cured by the instruction regarding the justification defense under Penal Law § 35.15.”

People v Cruz-Rivera, 2019 NY Slip Op 05921 (7/31/19) – App. Div. held that County Court properly denied defendant’s motion to dismiss the indictment on the ground that 2 witnesses had committed perjury in the grand jury, thereby impairing the integrity of the grand jury proceeding within the meaning of CPL § 210.35 (5).

“Dismissal of indictments under CPL 210.35 (5) should … be limited to those instances where prosecutorial wrongdoing, fraudulent conduct or errors potentially prejudice the ultimate decision reached by the Grand Jury. The likelihood of prejudice turns on the particular facts of each case, including the weight and nature of the admissible proof adduced to support the indictment. Here, inasmuch as the prosecutor did not knowingly offer perjured testimony and there was sufficient evidence before the grand jury to support the charges without considering the perjured testimony, dismissal of the indictment was not required.” Internal punctuation and citations omitted.

Voir Dire

4th Department

People v Herrod, 2019 NY Slip Op 05450 (7/5/19) – Affirmed the Murder 2 conviction following the hearing it ordered last year [163 AD3d 1462] re defendant’s Batson challenge.

“At the remittal hearing, the prosecutor testified that he struck the prospective juror because he was a crime victim who expressed some dissatisfaction with the manner in which the crime against him had been prosecuted and because he made statements suggesting that he might be receptive to defendant’s potential justification defense. We conclude that this was sufficient to satisfy the People’s ‘quite minimal’ burden of providing a race­-neutral reason for striking the juror [citations omitted]. * * *
“It is immaterial that the prospective juror stated that he would not hold against the People any dissatisfaction he had with the manner in which the crime against him was handled. ‘[A]ssurances from a challenged prospective juror that he or she could assess the evidence in a fair manner even though he or she was a crime victim are irrelevant to the determination of whether the basis of a peremptory challenge is pretextual’ [People v Grant, 128 AD3d 1088, 1090 (2d Dept 2015)]. Moreover, the court did not err in crediting the prosecutor’s proffered explanation given his testimony that he did not use a peremptory challenge against an African­-American juror who, despite being a crime victim, was satisfied with the resolution of her case and that he did use peremptory challenges to strike several Caucasian prospective jurors for [similar] reasons…. The court was in the best position to evaluate the demeanor of the prospective juror, the prosecutor, and defense counsel, and we conclude that its determination that the prosecutor’s proffered reasons for striking the prospective juror were not pretextual is entitled to great deference [citations omitted].”

Direct

1st Department

People v Hamilton, 2019 NY Slip Op 06153 (8/20/19) – People properly permitted, under CPL § 670.10, to (a) conduct a conditional examination of one of the robbery victims, and (b) have the video of the conditional examination admitted on their direct case. “The People established that at the time of trial, ‘the witness was outside the country and could not with due diligence be brought before the court’ (People v Carracedo, 228 AD2d 199, 200 [1st Dept 1996], affd 89 NY2d 1059 [1997]).” Defendant’s attorney “‘had the opportunity for full cross-examination of the witness’ at the videotaped examination, and ‘there is no evidence that the People’s failure to produce the witness was in any way due to indifference or strategic preference’ (id. at 199). Furthermore, the record establishes that the People met their burden under People v Diaz [97 NY2d 109, 117 (2001] of diligently attempting to convince a witness beyond the subpoena power of the United States to voluntarily return.”

People v Johnson (Steve), 2019 NY Slip Op 06444 (9/3/19) – “[T]he People’s expert was properly permitted to testify that persons asserting insanity defenses may exaggerate their mental illnesses in order to avoid prison. The court’s jury instructions, including its charge under CPL 300.10(3), were sufficient to prevent either the expert testimony at issue, or a summation remark by the prosecutor that defendant challenges in connection with this issue, from misleading the jury about the consequences of an insanity acquittal.”

2nd Department

People v Ward (Tiequan), 2019 NY Slip Op 06419 (8/28/19) – Murder 2 conviction, reversed in the interest of justice because “the cumulative effect of the [trial court’s] erroneous rulings and jury instructions relating to [a prosecution witness’s] refusal to take the oath and [her] invocation of the Fifth Amendment privilege, as well as the prosecutor’s exploitation of [the witness’s] refusal to take the oath and invocation of the Fifth Amendment privilege, deprived the defendant of a fair trial.”

Factual backdrop: “A purported witness to the shooting, Mercedes Mitchell, gave a sworn statement indicating that she observed the defendant shoot Oliver. Thereafter, however, Mitchell refused to cooperate with the District Attorney’s Office and was eventually brought to court during the trial on a material witness warrant. At the material witness hearing, her attorney attorney] indicated that if Mitchell were called to testify, she would invoke the Fifth Amendment privilege against self-incrimination because her proposed trial testimony could expose her to prosecution for perjury,” for Mitchell would now testify, contrary to her prior sworn statement, that “she neither saw the defendant shoot Oliver, nor saw the defendant in the parking lot where the shooting occurred.” Further, Mitchell also would testify that her prior sworn statement and her photographic identification of the defendant were coerced” by the police. The trial court ruled that Mitchell was not allowed to invoke the Fifth Amendment, but declined to grant the People’s request to that they be permitted to treat Mitchell as a hostile witness.

“When called to the stand, Mitchell refused to take the oath. The Supreme Court held her in contempt (see Judiciary Law § 750[A]), but then permitted the prosecutor to pose questions to her as an unsworn witness.” After Mitchell responded to a few background questions,” “the prosecutor then asked Mitchell whether she recalled speaking with the police on August 19, 2010, whether she recalled giving a recorded statement to the District Attorney’s Office on August 26, 2010, and most significantly, whether she “told the police that she saw NuNu [the defendant] shoot Stout [Oliver].” Mitchell invoked the Fifth Amendment privilege with respect to the first two questions, and the court sustained an objection to the last of those questions.

  • The trial court should not have permitted the prosecutor to question Mitchell after she refused to be sworn. Defendant, however, did not suffer cognizable prejudice from that ruling since “Mitchell did not, in fact, provide unsworn testimony other than giving background information about herself.”
  • But the objected-to question itself “brought to the jury’s attention inadmissible and prejudicial matter, i.e., that Mitchell was sufficiently familiar with the defendant and the victim such that she knew their respective nicknames, and that Mitchell told law enforcement officials that the defendant shot the victim [citations omitted].” No curative instruction was given, and “[g]iven Mitchell’s refusal to testify, it was impossible for the defendant to dispel the prejudice on cross-examination [see People v Vargas, 86 NY2d 215, 221 (1995); see also Namet v United States, 373 US 179, 186-187 (1963)].”
  • Additionally, the prosecutor argued in summation “that the jury should infer that Mitchell, and others, refused to testify only to avoid making an in-court identification of the defendant as the shooter [see Vargas, 86 NY2d at 217; (other citations omitted].”
In sum, “[t]he probative value of Mitchell’s unsworn testimony regarding her background information was greatly outweighed by the prejudice to the defendant by reason of Mitchell’s invocation of the Fifth Amendment privilege in the presence of the jury. The record amply demonstrates that the prosecutor exploited Mitchell’s assertion of the privilege and refusal to answer by asking leading questions and asking the jury, in summation, to draw inferences from Mitchell’s assertion of the privilege and refusal to answer.”

These prejudicial, prosecutorial errors were further compounded by the trial court’s failure to give any curative instruction when the prosecutor posed improper queries, and by its later charge that the jurors “could take into consideration Mitchell’s refusal to answer questions, since, although she had a right to refuse to answer questions that might incriminate her, she did not have that right in this case once she was granted immunity from prosecution. The court’s instruction erroneously suggested that the jury may draw an unwarranted inference against the defendant [citations omitted] and ignored the fact that Mitchell was not given immunity until after she had asserted the Fifth Amendment privilege 12 times [emphasis in original].”

3rd Department

People v Saxe, 2019 NY Slip Op 05345 (7/3/19) – Convictions reversed and new trial ordered because the Molineux evidence elicited by the People, at trial of defendant charged with sexual acts against a young male relative, deprived defendant of a fair trial. Two female relatives of defendant “testified to repeated instances of oral sex, vaginal sex and digital penetration by defendant, and one of the female relatives stated that defendant forced her and the other female relative to perform sexual acts upon each other as he watched;” these acts all took place more than 7 years before the victim in this case disclosed the sexual abuse perpetrated upon him. County Court should not have permitted this testimony, which “was not necessary to complete the narrative as to how and why the victim’s disclosure occurred [citations omitted]…. Additionally, the prior uncharged acts did not bear a sufficient similarity to the incident underlying the charged crimes so as to constitute, as the People argued, a common scheme or plan or demonstrate defendant’s intent or motive [citations omitted].” Consequently, “the People failed to establish that the proffered evidence was probative of a material issue other than defendant’s criminal propensity” or that the probative value outweighed its prejudicial effect.

Error could not be deemed harmless since the evidence of defendant’s guilt was not overwhelming — and the error was compounded by testimony from another child, “not included in the People’s Molineux proffer, as well as testimony from the victim’s mother and a detective as to defendant’s admissions regarding one of the female relatives.”

“Although the court gave appropriate limiting instructions to the jury, the pervasive nature of the improper and prejudicial testimony could not be remedied by those instructions. Such testimony gave rise to a significant risk that the jury convicted defendant based, in whole or in part, upon the conclusion that he was a serial sex offender who had not been punished for his prior uncharged crimes [citation omitted].”

Cross-examination

1st Department

People v Johnson (Steve), 2019 NY Slip Op 06444 (9/3/19) – Wholly appropriate for prosecutor to cross-examine an expert witness for the defense as to defendant’s ability to cooperate with his attorneys. “This was directly relevant to refute a claim about defendant’s alleged delusions that was at the core of his insanity defense. Defendant has not demonstrated that the only way he could rebut this cross-examination was by completely waiving the attorney-client privilege, or that there were any privileged matters that would actually tend to have such rebuttal effect. In any event, the cross-examination was plainly admissible under the circumstances of the case, and the alleged disadvantage it placed defendant under with regard to explaining or rebutting it did not entitle him to ‘disable the People from relying on that part of the truth’ [People v Yazum, 13 NY2d 302, 305 (1963).”

Summation

2nd Department

People v Robles (Saul), 2019 NY Slip 05572 (7/10/19) – After ordering a new trial for other reasons, the Second Dept concluded its decision of this appeal by noting that “the prosecutor engaged in multiple instances of inappropriate and unacceptable advocacy throughout her summation.”

“For example, the prosecutor improperly argued to the jury that there were ‘no coincidences,’ that the defendant was not the ‘unluckiest guy’ in Brooklyn, that “the evidence fits together . . . all the pieces connect,” that “all the evidence points directly at [the defendant] … because he’s guilty. Because he did these crimes’ [emphasis added by 2nd Dept], and that the jury would have to do ‘a lot of mental gymnastics to believe the defendant did not commit this crime.’ She vouched for the credibility of the first witness, arguing that if he had been lying, he would have testified that the defendant ‘stab[bed] two people.’ The prosecutor also referred to the defendant as engaging in ‘machismo’ at the time of the events in question. We express our strong disapproval of such conduct. ‘Evenhanded justice and respect for the fundamentals of a fair trial mandate the presentation of legal evidence unimpaired by intemperate conduct aimed at sidetracking the jury from its ultimate responsibility—determining facts relevant to guilt or innocence’ [People v Calabria, 94 NY2d 519, 523 (2000)].”

4th Department

People v Mahoney, 2019 NY Slip Op 06313 (8/22/19) – “While it was improper for the prosecutor to discuss her own personal experiences as a child during summation [citation omitted], the court immediately interjected and told the prosecutor that her conduct was improper” and instructed the jury to disregard it. “Under these circumstances, the prosecutor’s isolated comment, which was met with an immediate curative instruction, was not so egregious as to deprive defendant of a fair trial [citation omitted].”

People v Burton, 2019 N.Y. Slip Op. 06957 (9/27/19) – “The prosecutor’s questions during jury selection concerning the likelihood that a victim of child sexual abuse knows the offender were ‘relevant and material to the inquiry at hand’ [citations omitted]. To the extent that the prosecutor mischaracterized the testimony of a witness during summation, we conclude that the prosecutor’s comments were not so egregious as to deprive defendant of a fair trial [citations omitted].”

Disciplinary & Other Proceedings/Sanctions

A criminal defense attorney — who previously served as an ADA in 3 NYC metro area District Attorney’s Offices — was sentenced on September 23 to a 30-month prison term and $10,000 fine for his conviction of bribing a key prosecution witness to commit perjury in the double-homicide trial of his client, a Crip gang member. (The client was convicted, nevertheless, by the judge in the Suffolk County bench trial.) When announcing the sentence, EDNY U.S. Attorney Richard P. Donoghue thanked the Queens County District Attorney’s Office for its assistance during the investigation, which began after the DA’s Office investigators reported on wiretapped phone conversations of the lawyer’s assistant/PI.

Other News From Around the US

Kansas
A U.S. District Court judge has concluded that the U.S. Attorney’s Office for Kansas should be found in contempt for its surreptitious intrusion into attorney-client relationships & its lack of cooperation with the investigation launched after that Office’s accessing of recordings, of defense attorneys’ telephone conversations with their jailed clients, came to light. The amount of monetary damages to be awarded awaits fuller briefing by the parties. For an informative summary of the District Court’s 188-page decision and related history, see this Kansas City Star article of August 14, 2019.

Missouri
The Supreme Court of Missouri has suspended the law licenses of two former St. Louis prosecutors for covering up the fierce beating in 2014 of a handcuffed suspect by a police officer who thought the suspect had broken into his (the officer) daughter’s car and stolen her credit card.
Neither then employed by the local Circuit Attorney’s Office owned up to what they knew about the beating until their second interviews with the FBI. One of them cannot apply for reinstatement for at least 3 years. The other is suspended for a minimum of 2 years; she at least had accompanied another colleague to a supervisor to express concern that the police officer in question was falsely accusing the man of “fleeing to escape,” a felony.

Wyoming
By a 4-1 decision, the Wyoming Supreme Court held that the defendant, convicted of raping a woman in a Laramie bar’s bathroom after they were “making out” earlier, was denied a fair trial owing to prosecutorial misconduct. Because the proof of guilt was not overwhelming, the majority concluded a new trial was required.

  • The high court held that the prosecutors sought to convince the jury of the defendant’s guilt by making much of the fact that a woman who had briefly dated the defendant terminated the relationship because of “a negative experience.”
“Though the prosecutor did not elicit testimony about precisely what the ‘negative experience’ entailed, the context of Ms. K’s testimony certainly left an impression that Mr. Bogard had done something unsavory to Ms. K. * * * [W]e have little trouble concluding that the prosecutor’s repeated comments regarding the ‘negative experience’ could only have referred to the evidence the district court ruled was inadmissible and were made for the purpose of leaving the jury with the impression that the ‘negative experience’ consisted of an unpleasant sexual encounter between Mr. Bogard and Ms. K. By alluding to inadmissible evidence in his questioning of Ms. K, the prosecutor committed misconduct.”
  • It also condemned the emphasis in the prosecution’s summations on the victim’s alleged hysterical sobbing during the encounter in the bathroom and her repeated weeping thereafter up until trial; in the closing rebuttal, the prosecution also pointed to the fact that the victim was no longer attending college.
But, the Supreme Court observed, the victim had not testified that she cried during the assault or dropped out of college because of the trauma visited upon her by defendant. Moreover, these statements constituted impermissible “impact evidence” as defined by Wyoming jurisprudence.
  • The prosecutor’s deployment of the F word in summation also drew criticism. “We note that courts generally find it permissible for a prosecutor to repeat profanity in argument when the profanity is part of the evidence presented at trial. Otherwise, courts condemn counsel’s use of profanity in the courtroom.… The prosecutor’s use of profanity was entirely unnecessary to his presentation of the timeline. Instead, it was an obvious attempt to invoke feelings of anger, indignation, and outrage in the jury about what Mr. Bogard allegedly did to (the victim) in the bathroom.”

NYPTI Law Updated for 2019