Ethics Watch 3rd Quarter 2018 (October 5, 2018)


Professional Conduct Resources

The Right Thing

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Brady/Giglio/Rosario & Other Discovery Issues

1st Department

People v Bartley, 2018 NY Slip Op 05112 (7/10/18) – “The court providently exercised its discretion in denying defendant’s request for a mistrial, or declining to impose any other sanction, based on the People’s loss of the victim’s handwritten statements in two previous domestic incident reports. Initially, we note that while defense counsel first asked for an adverse inference, she immediately replaced that request with a motion for a mistrial, which was the only request ruled upon by the court, and we conclude that a mistrial would have plainly been a unwarranted remedy. In any event, the reports at issue were transcribed into typewritten reports, which were provided to defendant. Defendant has failed to show any likelihood of any errors or omissions in the transcription, or any other prejudice [see People v Martinez, 22 NY3d 551, 557 (2014)]. Moreover, even if the court had chosen to draw an adverse inference, there is no reasonable possibility that it would have thus reached a different verdict as trier of fact.”

2nd Department

People v Agina, 2018 NY Slip Op 05478 (7/25/18) – The trial court “providently exercised its discretion in denying the defendant’s request for an adverse inference charge as a sanction for the People’s inability to produce certain microcassette tapes at trial. The prosecutor stated on the record that the original tapes, which were entirely blank, were turned over to the defendant’s counsel at the first trial, and no copies were retained. Consequently, the defendant failed to show that the evidence was likely to be material, that the People acted in bad faith, or that he suffered any prejudice from the loss of the tapes warranting the imposition of the requested sanction.” See, e.g., People v Handy, 20 NY3d 663, 669 (2013), and People v Ignacio, 148 AD3d 824 (2d Dept. 2017).

People v Murray, 2018 NY Slip Op 05494 (7/25/18) – “The County Court did not improvidently exercise its discretion in denying the defendant’s repeated applications for disclosure of the personnel disciplinary file of one of the People’s police witnesses. The court examined the file in camera and determined that it contained no material warranting disclosure [see People v Perez, 44 AD3d 417 (1st Dept 2007); People v Contreras, 192 AD2d 417 (1st Dept 1993); People v Monroe, 186 AD2d 93 (1st Dept 1992)].”

People v DeFelice, 2018 NY Slip Op 05781 (8/15/18) – Defendant’s appeal from the 2013 murder conviction held in abeyance pending 2nd Department’s receipt of report from trial court following a reconstruction hearing on possible Brady material. “During the course of the trial, defense counsel informed the trial court that, according to the notes of an investigating police detective, the police had interviewed witnesses to whom the codefendant had made statements regarding his involvement in the shooting of the defendant’s girlfriend. Defense counsel requested to be given the material reflecting those statements, arguing that it constituted Brady material (see Brady v Maryland, 373 US 83). Alternatively, defense counsel requested that the court review the material to determine whether it should be disclosed under Brady. The trial court agreed to review the material in camera. No material was ultimately disclosed to the defendant.”

Defendant on appeal claimed, inter alia, that the failure to disclose the requested statements violated Brady. The People were not able to hand up to the App. Div. court any of the material that had been given to the trial court for in camera review; their files bore no indication of what had been submitted to the trial judge. The Second Department rejected the People’s argument that the materials in issue were dehors the record and should not be considered on the direct appeal. “[T]o the extent that material was produced to the trial court for in camera review, it is properly part of the record, and the defendant’s Brady claim would thus be reviewable on direct appeal. Under these circumstances, we deem it appropriate to remit the matter for a hearing to reconstruct the record as to what, if any, material was provided to the trial court for in camera review [see People v Yavru-Sakuk, 98 NY2d 56, 60-62 (20020], and thereafter to report to this Court with all convenient speed.”

People v Spruill, 2018 NY Slip Op 06041 (9/12/18) – On this People’s appeal, the Appellate Division reversed the lower court’s order, which vacated the 1998 murder conviction after a hearing on the CPL § 440.10(1) motion.

Supreme Court should have denied that branch of the defendant’s motion for vacatur on the ground of Brady violations.

  • The nondisclosure of a DOCCS record reflecting an eyewitness’s apparent suicide attempt, before he testified at the murder trial, did not constitute a Brady violation.
“As set forth in the DOCCS record, Newton, who was observed in the process of tying a bed sheet around a radiator pipe, reported that he was ‘stressed and [did] not want to go to court in fear of [the] safety of himself and family,’ and that he ‘fears [the defendant].’ The DOCCS record further indicated that Newton was ‘[a]ssured that this [would] be noted and that there should be no contact between him and enemy as well as enemy’s family.’ Thus, the DOCCS record attributed the apparent suicide attempt to Newton’s fear of the defendant and was therefore not favorable to the defense.”
Moreover, “the DOCCS record was not within the control of the prosecutor, who testified at the CPL article 440 hearing that he was not aware that Newton had attempted to commit suicide. Rather, the record was in the possession of DOCCS, which is ‘in most respects, an administrative rather than a law enforcement agency’ [People v Howard, 87 NY2d 940, 941; see People v Lanfranco,124 AD3d 1144, 1145 (3rd Dept 2015]. Thus, the record is not imputable to the People, and the prosecutor had no obligation to locate and produce the record to the defense [see Howard, 87 NY2d at 941; Lanfranco, 124 AD3d at 1145-1146; People v Smith, 89 AD3d 1148, 1150 (3rd Dept 2011)].”
  • The existence of a material witness order, concerning the other eyewitness to the murder, also was not exculpatory. See People v Lundy, 48 AD3d 1046, 1047 (4th Dept 2008).
“To the contrary, the record indicates that Connor’s absence was due to her fear of testifying against the defendant. During the trial, the prosecutor had informed the court, among other things, that one day after the shooting, an individual told Connor’s sister that Connor would be killed if she returned to the area. In any event, the defendant was not prejudiced by the failure of the prosecutor to disclose that he had obtained a material witness order for Connor, as the jury was aware that Connor did not want to testify. At trial, Connor testified that she ‘didn’t want to be here. The detectives had to threaten me to bring me here. I didn’t want to come’.”

Grand Jury

2nd Department

People v White, 2018 NY Slip Op 06276 (9/26/18) – People’s appeal from order dismissing the first degree manslaughter indictment on the ground that the grand jury proceeding was defective because the prosecutor did not instruct the grand jury on the defense of justification for use of deadly force as provided by Penal Law 35.15(2). The Second Department reinstated the indictment.

“According to the evidence submitted to the grand jury, the victim confronted his on­-and­-off girlfriend and the defendant as they were leaving a bar together. The victim and the defendant engaged in a physical altercation, throwing punches at each other. At one point, the victim fell to the ground and was not defending himself, at which time the defendant punched and stomped on him before driving off. The victim died of blunt force injuries to his face and neck. * * * Under these circumstances, where the defendant used his shoes or boots to stomp the victim after the threat had terminated, the use of deadly physical force and the failure to retreat precluded any claim of justification [see Penal Law § 10.00(11) and (10)People v Carter, 53 NY2d 113 (1981); People v O’Keefe, 105 AD3d 1062 (2d Dept 2013); People v Richardson, 95 AD3d 791 (1st Dept 2012)]. Accordingly, there was no reasonable view of the evidence, when viewed in the light most favorable to the defendant, that would support an instruction on the defense of justification.”

4th Department

People v Williams (Isiah), 2018 NY Slip Op 05091 (7/6/18) – Declined to hold that trial court erred in denying motion to dismiss the indictment. “Although one of the witnesses provided false testimony at the grand jury proceeding relating to count four of the indictment, that count was properly dismissed. Further, ‘[t]here is no indication that the People knowingly or deliberately presented false testimony before the Grand Jury, and thus there is no basis for finding that the integrity of the Grand Jury proceeding was impaired or [that] the [remaining counts of the] indictment [were] rendered defective by the alleged false testimony’ (People v Klosin, 281 AD2d 951, 951 (4th Dept 2001); see generally People v Huston, 88 NY2d 400, 406-407 (19906); People v Miller, 110 AD3d 1150, 1150-1151 (3rd Dept 2013)].”

People v Gelling, 2018 NY Slip Op 05423 (7/25/18) – As in People v Harris, 98 NY2d 452 (2002), the fact that the Grand Jury was not instructed on the defense of intoxication did not impair the integrity of the Grand Jury so as to give rise to dismissal of the indictment.

“Although the prosecutor has a duty to instruct the grand jury regarding any complete defense, ‘the prosecutor’s obligation to instruct the Grand Jury on a particular defense depends upon whether that defense has the potential for eliminating a needless or unfounded prosecution’ [citation omitted].” Here, there was insufficient evidence of intoxication — and the People were not obligated to search for such evidence. See People v Lancaster, 69 NY2d 20, 25-26 (1986).

Opening

2nd Department

People v Cherry, 2018 NY Slip Op 05190 (7/11/18) – Prosecutor’s comments, in his opening argument, about the indictment were improper, as were his comments about the victim and his family that “could only have been intended to evoke the jury’s sympathy.” In his direct examination of the medical examiner and the victim’s father, the prosecutor also “elicited certain testimony … that was irrelevant to the issues at trial, and was likewise intended to evoke the jury’s sympathy.” But because “there was overwhelming evidence of the defendant’s guilt and no significant probability that any error contributed to his convictions,” the Second Department declined to order a new trial.

Direct

2nd Department

People v Reddick, 2018 NY Slip Op 05608 (8/1/18) – The People should not have been permitted to elicit testimony from NYPD detective “that, in his opinion, the defendant was the person depicted in video surveillance footage.”

“While, under the proper circumstances, the 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)], 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 [see People v Myrick, 135 AD3d 1069, 1074 n 2 (3rd Dept 2016); other citations omitted].”

People v Wilburn, 2018 NY Slip Op 05613 (8/1/18) – Because defense counsel’s opening statement raised question of codefendant’s motive to testify, trial court did not err in subsequently permitting the prosecutor to: elicit testimony from codefendant about the cooperation agreement, put the written agreement into evidence, and comment on the agreement in summation. See, e.g., People v Choi, 137 AD3d 808, 809 (2d Dept 2016).

People v Martinez, 2018 NY Slip Op 06034 (9/12/18) – The elicitation of testimony from a police witness “that he had seen the defendant ‘countless number of times,’ and knew him by name” did not require a new trial. Beyond the fact that the claim was not preserved by objection at trial, “this testimony was relevant to the issue of identity [see, e.g., People v Vega, 37 AD3d 351, 352 (1st Dept 2007); People v Prescott, 300 AD2d 325 (2d Dept 2002)], and did not deprive the defendant of a fair trial since it did not implicate him in any prior misconduct or uncharged crime [see, e.g., People v Woody, 9 AD3d 439 (2d Dept 2004); People v Gomez, 253 AD2d 719, 720 (1st Dept 1998)].”

People v Ramos, 2018 NY Slip Op 06039 (9/12/18) – “Defense counsel assailed the testimony of the complainant on cross-examination as a recent fabrication.” Consequently, it was not error for the People to elicit, on direct examination of a law enforcement witness, the complainant’s prior consistent statement. See People v McDaniel, 81 NY2d 10, 18 (1993); People v Walsh, 289 AD2d 517 (2d Dept 2001).

People v Anselmo, 2018 NY Slip Op 06251 (9/26/18) – At trial, the prosecutor elicited testimony about the defendant’s assault of the complainant 10 years earlier, an incident that was not included in the People’s pretrial Molineux application. Although this was improper, the trial court instructed the jury, following defense counsel’s objection, that it should disregard that testimony. Defendant’s lawyer did not then move for a mistrial or seek further instructions. Consequently, “the court’s curative instruct ‘must be deemed to have corrected [any] error to the defendant’s satisfaction’ [People v Heide, 84 NY2d 943, 944 (1994); see also People v Seabrooks, 82 AD3d 1130, 1131-32 (2d Dept 2011)].”

The prosecutor also violated the court’s Molineux ruling by eliciting the underlying facts of an incident that resulted in an order of protection against defendant and in favor of the complainant. But “any error occasioned by the admission of the underlying facts was harmless because there was overwhelming evidence of [Anselmo’s] guilt and no significant probability that the error contributed to his convictions [citations omitted].”

People v Singletary, 2018 NY Slip Op 06273 (9/26/18) – The People did not violate defendant’s constitutional right of confrontation by eliciting “the codefendant’s informal remarks to detectives, which were not made in response to structured police questioning.” The remarks, not described in the Second Department’s decisions, “were not testimonial in nature.” See People v McBee, 8 AD3d 500 (2d Dept 2004); People v Newland, 6 AD3d 330, 331 (1st Dept 2004).

3rd Department

People v Lentini, 2018 NY Slip Op 04983 (7/5/18) – Felony conviction of leaving the scene of an incident without reporting a personal injury [VTL § 600(2)] reversed. “Defendant’s strategy at trial relied in large part upon the fact that she was not at fault in the accident but did witness the victim’s body being propelled through her windshield and coming to rest inches away from her. She relied upon this state of affairs to contend that her failure to contact authorities was not because she was ‘coldly calculating,’ but because she was in shock and incapable of doing so.” Because “[a]ny indication that defendant sought to consult with counsel would undermine the foundation of this defense by prejudically suggesting that she was conscious of guilt, rational enough to consider the question of counsel and, perhaps, capable of reporting the accident or taking steps to avoid doing so [see e.g. People v Al-Kanani, 26 NY2d 473, 478 (1970]”, the trial court granted defendant’s application to “‘preclude any testimony regarding [defendant’s] determination or consideration to consult with counsel’ on the night of the accident.” But the testimony of two of the People’s witnesses violated that ruling.

  • The deputy sheriff who responded to the 911 call “testified that defendant chose not to be interviewed about the accident because ‘she did not feel comfortable answering questions . . . without her lawyer present’.” Defense counsel promptly objected and moved for a mistrial. “County Court declined to grant a mistrial, but was troubled by the violation of its pretrial ruling and elected to strike the entirety of the officer’s testimony, bar any further testimony from him and give a curative instruction to the jury.”
  • Defendant’s then boyfriend testified that defendant had asked him for the telephone number of his lawyer when she called him shortly after the accident. In response to defense counsel’s renewed application for a mistrial, the prosecutor “expressed surprise” at the offending testimony, but acknowledged in the ensuing colloquy that the ex-boyfriend had not been instructed to avoid testifying about defendant’s request. Finding the People’s conduct “extremely disturbing,” the trial court struck the witness’s testimony in its entirety, precluded any further testimony from him, and gave another curative instruction to the jury.

The Third Department concluded that “these repeated violations of the pretrial ruling, in a case where defendant’s capacity to act and her actions after the accident were in serious dispute, caused harm that could not be reliably dissipated” by curative instructions, and that a mistrial should have been granted. It deemed a new trial to be the appropriate remedy, however — not dismissal of the indictment on the ground that the People deliberately acted to provoke a mistrial [see People v Russell, 199 AD2d 345, 346 (2nd Dept 1993); cf. Matter of Gorghan v DeAngelis, 7 NY3d 470, 473 (2006)].

People v Gilley, 2018 NY Slip Op 05226 (7/12/18) – “The People did not [impermissibly] bolster the victim’s identification of defendant through questions posed to the officer who conducted the show-up procedure. In response to the victim’s testimony that called that procedure into question, the People asked the officer about the procedure utilized, but did not elicit testimony on direct examination about the victim’s identification of defendant. This was not improper bolstering [compare People v Trowbridge, 305 NY 471, 474-478 (1953); People v Jones, 75 AD2d 607, 607 (2nd Dept 1980); see generally People v Smith,22 NY3d 462, 466 (2013)].”

People v Myers, 2018 NY Slip Op 05225 (7/12/18) – Defendant, tried and convicted of Assault 1, was not denied a fair trial when the People were permitted to elicit testimony about the victim’s injuries even though the parties had stipulated that the victim sustained “a serious physical injury.” See People v White,79 AD3d 1460, 1463 (3rd Dept 2010). “Furthermore, County Court limited any prejudice by sustaining defendant’s objections to some of the People’s questions and instructing the jury that it was ‘not allowed to consider sympathy or passion at any time’ [ibid].”

People v Cayea, 2018 NY Slip Op 05372 (7/19/18) – Autopsy photographs were properly part of the People’s case because the record showed they were not used to inflame the jurors’ emotions. Rather, the photos demonstrated “that defendant’s argument that he was choking the victim for her pleasure did not comport with the evidence in the photographs, which established that there was trauma to parts of the victim’s body besides her neck [see People v White, 153 AD3d 1565, 1566 (4th Dept 2017); People v Timmons, 78 AD3d 1241, 1244-1245 (3rd Dept 2010)].”

4th Department

People v Barnett, 2018 NY Slip Op 05186 (7/11/18) – Autopsy photographs were properly part of the People’s case at defendant’s trial for murder. They “were neither excessively gruesome nor introduced for the sole purpose of arousing the jurors’ passions and prejudicing the defendant [citations omitted]”, but rather, helped “illustrate and corroborate the testimony of the pathologist” and were relevant proof of defendant’s intent. “The mere fact that the defendant raised a justification defense did not require the exclusion of these photographs, since the prosecutor was obligated to prove the essential elements of the crimes charged [see People v Stevens, 76 NY2d 833, 836 (1990)].”

People v Larregui, 2018 NY Slip Op 06371 (9/28/18) – Trial court properly permitted the prosecutor to speak to the attorney of a People’s witness during a break in the course of that witness’s direct testimony.

“The prosecutor informed the court that the witness, who was one of defendant’s alleged accomplices, was giving testimony contrary to what the witness had previously told the prosecutor. The court ruled that the witness’s testimony would remain in the record, but allowed the prosecutor to speak to the witness’s attorney, who in turn spoke to the witness. Thereafter, defense counsel cross­-examined the witness regarding the nature of the latter conversation. Here, ‘[f]aced with the need to make sure the court’s truth­-seeking function was not impaired …[,] the court chose a sound middle path that allowed the People a chance to rehabilitate their case to some extent, yet fully protected both defendant’s right to cross­examination and the jury’s authority to make informed determinations as to facts and credibility’ [People v Branch, 83 NY2d 663, 667 (1994)]. Thus, we conclude that the court’s ruling was not an abuse of discretion [Branch, 83 NY2d at 668; People v Clark, 139 AD3d 1368, 1370 (4th Dept 2016)].”

Cross-examination

2nd Department

People v Moulton, 2018 NY Slip Op 05203 (7/11/18) – Rape 1 trial conviction reversed in the interest of justice because trial prosecutor violated the unsworn witness rule in her cross-examination of defendant’s girlfriend, who was the grandmother of the 8-year-old victim.

“The prosecutor repeatedly injected her own credibility into the trial while cross-examining the complainant’s grandmother, who was the sole witness for the defense other than the defendant, about pretrial out-of-court statements the grandmother made to the prosecutor concerning the complainant’s outcry [see People v Paperno, 54 NY2d 294, 300-301 (1981)]. Given the importance of the grandmother’s testimony to the defense, this conduct deprived the defendant of his right to a fair trial [citations omitted].”

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.

3rd Department

People v Lang, 2018 NY Slip Op 05639 (8/2/18) − The trial prosecutor frequently prefaced his assertions in summation with “I think” or “I don’t believe.” Although the trial court overruled defense counsel’s objections, it contemporaneously instructed the jurors that, e.g., the ADA was “entitled to make an argument … of the inferences and conclusions he believes reasonably and logically flow from the facts,” and “[s]o long as he stays away from [vouching for a witness’s credibility], he can state what the evidence shows in his opinion.” Additionally, the trial court’s pre-deliberations charge instructed the jurors that summations are not evidence, and “whatever the lawyers said and however they said it, you should remember that what the lawyers said is simply argument submitted for your consideration.”

Under these circumstances, the Third Department concluded that “notwithstanding the prosecutor’s stylistic choice to use personal pronouns [see People v Franklin, 288 AD2d 751, 755 (3rd Dept 2001)],” he had not impermissibly vouched for the People’s witness; his summation constituted a fair response to defense counsel’s summation; and defendant was not denied a fair trial by the prosecutor’s closing argument.

4th Department

People v Lively, 2018 NY Slip Op 05413 (7/25/18) – Court agreed with defendant that the prosecutor in this murder trial “committed misconduct when she mischaracterized the DNA evidence by stating that defendant’s DNA ‘matched’ DNA found on the victim’s acrylic nail [citing to, inter alia, People v Wright, 25 NY3d 769, 781-783 (2016)].” But it declined to reverse in the interest of justice or on the ground that defense counsel was ineffective for failing to object to that aspect of the the prosecutor’s closing argument.

“The testimony at trial established that defendant could not be excluded as the source of the DNA found on the victim’s nail and that the chance of randomly selecting an unrelated individual as the source of the DNA was less than one in 114,000. Here, as in People v Glass [150 AD3d 1408 (3rd Dept 2017)], the sole mischaracterization of the DNA evidence ‘did not rise to the flagrant and pervasive level of misconduct [that] would deprive defendant of due process’ [Glass, 150 AD3d at 1411], and defense counsel was not ineffective in failing to object to the single improper comment [citations omitted].”

Other News

New York

Albany prosecutor resigns will become public defender after an internal review verified that he had performed criminal work (writing defense appellate briefs) on a transactional basis without permisssion, in violation of office policy.

District of Columbia

U.S. Court of Appeals for the District of District of Columbia sided in part with a former securities lawyer convicted of criminal fraud charges (Bartko), ruling, in a Freedom of Information Act suit, that the Justice Department’s internal disciplinary office cannot invoke a blanket exemption for “law enforcement” records. The Court held that Bartko could gain access to possible disciplinary records of porsectuors who tried his case.

Florida

Ugly Incident: Prominent Broward Prosecutor Charged with Shoplifting Beauty Products

Illinois

Ex-Porter deputy prosecutor’s law license suspended for failing to disclose evidence

Tennessee

In July, the Board of Professional Responsibility of the Supreme Court of Tennessee issued a Public Censure of a local prosecutor who wrote a published book about a double murder case, in which he was the lead prosecutor, before all the convicted defendants’ appeals were completed.

Washington

State v Salas, 408 P.3d 383 (Wash Ct App 2018), the court found that PowerPoint slides used by the prosecutor in closing were used to inflame prejudice and impermissibily express the prosecutor’s opinion. To see the images and a discussion of the slides see: Ethics Corner: Prosecutors and PowerPoints