Professional Conduct Resources
The Right Thing
Code of Conduct
2nd Quarter 2023 Ethics Decisions
Brady/Giglio/Rosario & Other Discovery Issues
1st Dept
People v Flores (Felix Ojeda), and Carrera (Orlando), 2023 NY Slip Op 02768 (5/23/23) – 1st Dept reversed the trial court’s summary denial of the CPL 440.10 motion, which raised a Brady claim — and dismissed the indictments, as a matter of discretion in the interest of justice, because the defendants were deported after serving the 8-year sentences imposed in 2015 upon their convictions for Criminal Sexual Act 2.
- “The People inexplicably suppressed evidence” of the DA Office’s Crime Victims Assistance Unit’s help to the complainant in his quest to obtain a “U visa,” which may be given to an alien victim or crime witness because of their help in a criminal investigation /prosecution. A U visa is “a valuable benefit,” for it is a pathway to permanent resident status. “Although the 440 court correctly pointed out that a prosecutor’s certification does not guarantee a U visa, Brady does not require a guarantee…. The DA is not mandated by federal law to issue the certification, but there is no reason to believe that the DA would arbitrarily refuse to issue a certification to a victim of a qualifying crime who assists in a prosecution. It is also of no moment that the prosecutor issued the U visa certification to L.R. after defendants were sentenced. Brady does not require that the benefit materialize in advance of the cooperation…” [citations omitted].
3rd Dept
People v Wilkins (Jovan), 2023 NY Slip Op 02807 (5/25/23) – In light of the particular circumstances of this case, People’s failure to turn over information that one of the forensic scientists who testified for the prosecution had cheated on her TruAllele qualification examination, and then lied about that to State Police Investigators, did not require reversal. Although defendant specifically requested the undisclosed evidence, the materiality element of Brady violation analysis “is satisfied only if there existed a reasonable possibility that the evidence would have changed the result of the proceeding. Here, however, the verdict was based on the credibility determination of the accounts of the altercation between defendant and the victim and whether defendant’s actions were justified. The forensic scientist’s testimony concerning the victim’s blood being on defendant’s shirt was not key to the verdict. Defense counsel had even argued that the location of the forensic stains was at odds with the victim’s account of the stabbing.” CPL 440.10 motion properly denied since defendant did not meet his burden of establishing prejudice.
Grand Jury
1st Dept
People v Arias (John), 2023 NY Slip Op 02983 (6/6/23) – Court rejected claim that trial court should have dismissed indictment because prosecutor did not make grand jurors aware of a witness’s prior inconsistent statement. “The alleged error did not rise to the level of impairment of the integrity of the grand jury proceedings. This was not a case like People v Pelchat (62 NY2d 97 [1984]), where the indictment was based solely on perjured testimony. ‘Inconsistency in the evidence does not warrant a conclusion that perjury was committed’ (People v Fisher, 244 AD2d 191, 191 [1997], lv denied 91 NY2d 891 [1998]), and defendant has not explained why testimony by a witness who has made a prior inconsistent statement could not be considered ‘comp6etent’ evidence to support an indictment.”
2nd Dept
People v Manners (Benjamin), 2023 NY Slip Op 03017 (6/7/2023) – A grand jury may reconsider a dismissal which has not been filed, so long as the decision to reconsider is truly sua sponte. A truly sua sponte reconsideration violates neither the letter nor the spirit of CPL 190.75. A self-initiated reconsideration by the grand jury does not undermine the policies underlying CPL 190.75(3). Since the reconsideration is not prompted by the prosecutor, there is no possibility of prosecutorial overreaching, and the integrity and independence of the grand jury is not impugned (see People v Montanez, 90 NY2d 690 at 694).
4th Dept
People v Ashley (Gage), 2023 NY Slip Op 02432 (5/5/23) – Where an unqualified grand juror (see CPL 210.35) is seated, that Grand Jury is illegally constituted. Accordingly an indictment found by that Grand Jury must be automatically dismissed, regardless of any prejudice to the defendant. The Fourth Department held that where “there is no dispute that the grand jury proceedings were defective under CPL 210.35 (1) due to the presence of the unqualified grand juror … the court should have automatically dismissed the indictment without requiring any showing of prejudice by defendant (see People v. Williams, 73 NY2d 84 at p. 91).
BUT – see the People’s argument that this situation does not require automatic dismissal without some showing of prejudice. People v Ashley – Respondent’s Brief to 4th Dept.
Direct
1st Dept
People v Washington (Demetrius), 2023 NY Slip Op 03291 (6/15/23) – People’s expert properly testified re gang language and practices (see People v Bailey, 148 AD3d 547, 548 [1st Dept 2017], affd 32 NY3d 70 [2018]). “To the extent that the witness explained coded words and phrases, we find that this testimony did not exceed the limitations contained in People v Inoa (25 NY3d 466, 474 [2015]). Although the witness also testified about his own observations, there was no legal impediment to the officer testifying as both a fact and expert witness [citation omitted].” Lastly, even if the witnesses’ “reference to how they also used unspecified debriefings of nontestifying informants when identifying members violated the Confrontation Clause, we find that the People have proven ‘beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained’ (Chapman v California, 386 US 18, 24 [1967]). This evidence was limited to the issue of gang affiliation, and it was cumulative to extensive admissible evidence on that subject.”
2nd Dept
People v Williams (Terrell), 2023 NY Slip Op 01809 (4/5/23) – Defendant’s Confrontation Clause rights not violated by People’s introduction of autopsy report redacted to eliminate opinions. “As determined by the Court of Appeals in decisions binding upon this Court, the non-opinion portion of the autopsy report was nontestimonial in nature (see People v John, 27 NY3d 294, 315 [2016]; People v Freycinet, 11 NY3d 38, 42 [2008]; see also People v Ganthier, 195 AD3d 639, 640).”
People v Farrow (Justin), 2023 NY Slip Op 02679 (5/17/23) – App. Div. rejected defendant’s claim that he was denied a fair trial because the People elicited a complainant’s identification of defendant, for the first time, from a single photograph — after defendant “knowingly and voluntarily absented himself from the courtroom during that complainant’s testimony.” Defense counsel here “had the opportunity to cross-examine the complainant in front of the jury as to the potential suggestiveness of her identification of the defendant and elicited that she saw a photograph of the alleged perpetrator in an article on the Internet.”
People v Sams (Carlos), 2023 NY Slip Op 02684 (5/17/23) – Murder conviction reversed on ground that prosecutor should not have been permitted to impeach People’s witness, and error could not be deemed harmless. “[T]he witness’s testimony, in effect, that he did not see the perpetrator’s face and did not see the defendant fire a gun, merely failed to corroborate or bolster the prosecutor’s case, but it did not contradict or disprove any testimony or other factual evidence presented by the prosecution…. Accordingly, the prosecutor’s use of the witness’s prior statement for impeachment purposes was impermissible [see CPL 60.35; case citations omitted].
3rd Dept
People v Thomas (James), 2023 NY Slip Op 01918 (4/13/23) – Appellate Division rejected defendant’s argument that the prosecutor engaged in misconduct by threatening the co-defendant with a perjury charge if he failed to give certain testimony. The record demonstrated that the prosecutor had merely told the co-defendant that he could be charged with perjury if he did not give truthful testimony. In addition, in response to the trial court’s inquiry, the co-defendant stated that the prosecutor had not threatened him.
People v Cole (Walter), 2023 NY Slip Op 01920 (4/13/23) – Third Department declined to order reversal on the ground that the prosecutor did not abide by the pretrial Molineux ruling. In his direct examination of the victim, the prosecutor asked the victim to identify a specific time when defendant had made her feel unsafe;she answered that he had taken pictures of her without her knowledge. The trial court, which had just given a prior bad act cautionary instruction, immediately sustained defense counsel’s objection. At the sidebar that followed, defense counsel suggested that “we move along,” and the parties agreed that the prosecutor should lead the victim briefly to avoid any additional violations. There was nothing in the record which indicated that the prosecutor deliberately elicited the testimony which was outside the scope of the Molineux ruling. As for the two other alleged violations, the witness’s response was the result of defense counsel questions; the trial court struck the testimony; and gave curative instructions. Consequently, defendant was not denied a fair trial.
People v Robinson (Alphonso), 2023 NY Slip Op 02561 (5/11/23) –Aggravated criminal contempt conviction reversed because trial court did not conduct a Sirois hearing before granting the People’s application to use hearsay statements from the victim. The prosecutor’s supporting affidavit averred the victim was refusing to testify and set forth what was said in intercepted phone calls from the local jail. But although the People further alleged that the phone calls were made using defendant’s PIN number, there was no proof that the defendant placed the calls; there were other deficiences in the People’s evidentiary showing. In sum, the People’s evidence was subject to competing inferences, and the trial court should have conducted a hearing to determine whether there was a link between the victim’s refusal to testify at trial and the jail calls. The Confrontation Clause violation was not harmless error, for it could not be said that there was no reasonable possibility that the admission of the victim’s written statement did not contribute to the conviction.
People v Nellis (Daniel), 2023 NY Slip Op 03046 (6/8/23) – Murder conviction reversed because of numerous instances of prosecutorial misconduct throughout the trial. On the People’s direct case, the prosecutor elicited testimony from three witnesses concerning a prior bad act which had not been included in the People’s Molineux application. More specifically, defendant volunteered that he had shot someone off a motorcycle. Since defendant was on trial for murder where the victim had been shot, “this bad act evidence was particularly damning and . . . gave rise to a significant risk that the jury would view it as evidence of defendant’s criminal propensity.” The Appellate Division also was concerned the evidence was presented through multiple witnesses and the trial judge did not give limiting instructions.
- ➢ Other aspects of Ellis are summarized below in the Summation category.
4th Dept
People v Tohafijan (Emerson), 2023 NY Slip Op 02411 (5/5/23) – Defendant’s claims of prosecutorial misconduct were held to be meritless. The defendant’s suicide attempt was properly admitted to establish his consciousness of guilt,and it was not improper for a member of the DA’s staff to assist the victim to display her gunshot wounds to the jury; she was partially paralyzed and needed assistance. In any event, the court alleviated any potential undue prejudice through its instruction to the jury to resist rendering a verdict based on, inter alia, sympathy (see generally People v Moore, 32 AD3d 1354, 1354 [4th Dept 2006].
People v McKoy (Willie), 2023 NY Slip Op 03119 (6/9/23) – Defendant’s claim that he was denied a fair trial by prosecutorial misconduct found to be unpreserved and, in any event, without merit. Defendant asserted he was prejudiced when the prosecutor failed to correct trial testimony that he knew to be false when two eyewitnesses gave discrepant accounts whether they had seen and spoken with each other in the parking lot. Although a prosecutor has a “duty to correct [trial testimony that the prosecutor] knows to be false and [to] elicit the truth” (People v Savvides, 1 NY2d 554, 557 [1956]; other citations omitted), the record was bereft of evidence that the prosecutor here “knowingly elicited or failed to correct false testimony or misled the jury [citations omitted].”
Cross-examination
3rd Dept
People v Nellis (Daniel), 2023 NY Slip Op 03046 (6/8/23) – Murder conviction reversed for numerous instances of prosecutorial misconduct throughout the trial. Trial court’s Sandoval ruling authorized the People to cross-examine Nellis as to his 10-year-old conviction for attempted reckless endangerment in the second degree. But in cross-examining the defendant, the prosecutor asked about incidents that were not included in the People’s Sandoval application, posed a line of questions on the prior conviction that was otherwise “plainly improper” as they did not bear upon the defendant’s credibility or veracity, but rather upon his criminal propensity. “Said another way, the prosecutor, through his questioning, did not merely attempt to impeach defendant’s testimony, but instead sought to create the impression that defendant had a propensity for acting violently when angry.”
- ➢ Additional aspects of Nellis are summarized below in the “Summation” section.
Summation
1st Dept
People v Lavine (Joel), 2023 NY Slip Op 03416 (6/22/23) – Prosecutor’s challenged comment in summation did not shift burden of proof to defendant on trial for sex offenses. “[T]he remark in question merely apprised the jurors that a finding of lack of consent could not only be proven by the victim expressly rejecting sexual contact, such as by saying ‘no’ or ‘stop.’ [This] did not misstate the law, ask the jury to disregard it, or undermine a defense claim of implied consent. On the contrary, the remark was consistent with a person’s responsibility not to engage in sexual contact in the absence of ‘express[] or implied[] acquiescence in the actor’s conduct’ (Penal Law 130.05[2][c]).”
2nd Dept
People v Russell (Ronald), 2023 NY Slip Op 02797 (5/24/23) – In summation, the ADA made two, abbreviated characterizations of the DNA analysis that the Second Department found were “technically inaccurate.” But the trial court, inter alia, gave a curative instruction with respect to one of the comments; the other “was not ‘so egregious or misleading that defense counsel’s failure to object constituted ineffective assistance so as to deprive defendant of a fair trial’ [citations omitted].”
People v Vaughn (David), 2023 NY Slip Op 03243 (6/14/23) – ADA made remarks during summation “which were directed against the character of the defense expert and which misconstrued the substance of the expert’s testimony” and were therefore improper.
- “[S]ummation is not an unbridled debate in which the restraints imposed at trial are cast aside so that counsel may employ all the rhetorical devices at his [or her] command. Thus, a prosecutor is only permitted to make remarks that are fair comment on the evidence, rhetorical comment, or a fair response to defense counsel’s summation [internal punctuation and citations omitted].”
The Second Department, however, concluded that under the particular circumstances of this case, the prosecutor’s summation did not require reversal and a new trial.
3rd Dept
People v Graham (Carlos), 2023 NY Slip Op 01819 (4/6/23) – People acknowledged on defendant’s appeal from his conviction for murder that the trial prosecutor in summation should not have said that a People’s witness, defendant’s longtime acquaintance, testified to the “true account.” Attorneys may not vouch for the credibility of a witness in their closing arguments. It was also improper for the ADA to call defendant a liar. But the Third Department affirmed the judgment because other remarks about which defendant complained, were either fair comment on the evidence or responsive to defense counsel’s summation, and the ADA’s “unwarranted rhetoric” was not so egregious and pervasive as to deny defendant a fair trial.
People v Nellis (Daniel), 2023 NY Slip Op 03046 (6/8/23) – Murder conviction reversed for many instances of prosecutorial misconduct during trial. In summation, the prosecutor repeatedly strayed outside the bounds of fair comment on the evidence and denigrated the defense during summation.
- E.g., “The devil is in the details. I’m sorry, Daniel Nellis is in the details;” “Maybe [the defendant is] manipulative. That’s the type of person who might just kill someone, and they may appear to do it for no reason;” it was not the jury’s job “to make sense out of a senseless act,” and that “bad things happen in life . . . and no matter how hard we try, we’re unable to get answers, or good answers, about why they occur;” and in referring to the fact that defendant was seen buying coffee shortly after the murder, “There’s a name for people who act like that, ladies and gentlemen. Those people with that kind of a title, they don’t need motives.”
The Third Department condemned the summation as one designed to give the jury the “the highly prejudicial impression that defendant acted in the manner that he did because he was hotheaded and prone to violence.”
- ➢ Other aspects of Ellis appear above in the Direct and Cross-Examination sections.
4th Dept
People v T.P., 2023 NY Slip Op 02479 (5/9/23) – Prosecutorial misconduct claim was held to be meritless. Defendant acknowledged at trial that she had lied to the police; the prosecutor’s remarks highlighting defendant’s untruthfulness and disagreeing with defense counsel’s assertion that defendant was now telling the truth were fair comment on the evidence.
People v Cannon (Latifah), 2023 NY Slip Op 03134 (6/9/23) – Court rejected defendant’s contention that she was denied a fair trial because of improper statements made by the prosecutor during summation. “To the extent that a portion of the prosecutor’s summation could be viewed as containing a misstatement of law, . . . any prejudice was avoided by the court’s instructions, which the jury is presumed to have followed [citations omitted].”
Conflict of Interest-Appearance of Impropriety
3rd Dept
People v Thomas (Gavin), 2023 NY Slip Op 03261 (3d Dept 6/15/23) – After his conviction was affirmed, defendant learned that his trial prosecutor had been paid during the same time to ghost write appellate briefs for a defense attorney; the lawyer who represented him at trial was an associate in that attorney’s office. Defendant then filed a CPL 440.10 motion to vacate the judgment on the ground that his trial lawyer had a conflict of interest that was not disclosed to him prior to trial. After holding a hearing, the trial court denied the motion. The Third Department, finding that defendant had not met his burden, upheld the denial.
- Where, as here, there was but a potential conflict of interest, the conviction need only be reversed if the conflict “affected or operated on or bore a substantial relation on the conduct of the defense.” According to all accounts (and reflected in the trial transcrpt), the relationship during defendant’s trial between his lawyer and the ADA was “contentious.” The defense attorney testified that her associate described the ADA at the time as being “a real jerk” and demeaning. More importantly, “trial counsel’s advocacy throughout the trial — which included raising a Batson challenge during jury selection and presenting a cogent closing argument, as well as lodging objections during and moving for a mistrial based upon the People’s summation — evidenced zealous representation of defendant, and nothing on the face of the record suggests that such representation was in any manner affected by the ADA’s and the defense attorney’s undisclosed business relationship.”
Miscellaneous
Pre-indictment delay
People v Wald (Evan), 2023 NY Slip Op 01967 (1st Dept 4/19/23) – Agreed with lower court that 21-year delay should not give rise to dismissal under People v Taranovich, 37 NY2d 442, 445 (1975). Although the delay “was significant, it was not due to bad faith or to gain a tactical advantage. Instead, it was the result of the prosecutor’s efforts to acquire additional evidence to prove defendant’s guilt beyond a reasonable doubt. The investigative delays were satisfactorily explained and were permissible exercises of prosecutorial discretion [citation omitted].” Also distinguished this case from the recently decided People v Regan, 2023 NY Slip Op 01353 (3/16/23), where the Court of Appeals dismissed the rape charge after conducting Taranovich analysis of the more than 4 years’ delay between the crime and indictment.
Constitutional right to a speedy trial
People v Shrubsall (William), 2023 NY Slip Op 03610 (4th Dept 6/30/23) –Appellate Division upheld the trial court’s denial, following a hearing, of defendant’s 2019 motion to dismiss the bail jumping indictment, filed in 2000 after defendant failed to return to court for the continued trial on sex offense charges. He fled to Canada where he was subsequently prosecuted and convicted of a number of serious crimes, for which he was incarcerated for nearly 17 years before he was paroled and the Canadian authorities turned him over to New York in January of 2019.
The Fourth Department agreed that the 18½-year delay was “extraordinary,” but “the initial reason for the delay was attributable solely to defendant,” and he was held at all times pursuant to the Canadian prosecutions, not because of “any relevant pretrial incarceration” on the bail jumping indictment. The evidence at the hearing showed that the People made conscientious efforts to have defendant extradited back to New York, albeit without success. Although bail jumping is not a crime that requires extensive preparation, the App. Div. court declared “we cannot ignore that the bail jumping count arose from defendant’s attempt to avoid being held accountable and sentenced for the undoubtably serious sex offenses he committed against [an underage teen].” Lastly, it found that defendant was not truly prejudiced “by the delay that he himself caused by his fugitivity.” In sum, after conducting the kind of analysis required by Taranovich and its progeny, the 4th Department found that the People did not violate this defendant’s constitutional right to a speedy trial.
Disciplinary & Other Proceedings/Sanctions
Counsel fined $5,000 for first relying on ChatGPT & then their cover-up
Following a hearing on June 8, senior SDNY Judge Castel ordered a civil plaintiff’s attorneys & their firm to pay a $5,000 penalty for submitting (a) court papers with bogus case citations and decisions generated by ChatGPT, and (b) affidavits that were not truthful-accurate. The two individual attorneys were also ordered to serve a copy of the sanctions decision and related documents to their client and the judges whose names appear in the fake court decisions. Mata v Avianca, Inc., citation not yet available (SDNY 6/22/23). The orders and papers that led up to this decision may be found here:
22-cv-1461 (PKC), Document #33 and preceding Documents ## 24-32.
Federal Judge Requires All Lawyers to File Certificates related to AI
- “All attorneys appearing before the Court must file on the docket a certificate attesting either that no portion of the filing was drafted by generative artificial intelligence (such as ChatGPT, Harvey.AI, or Google Bard) or that any language drafted by generative artificial intelligence was checked for accuracy, using print reporters or traditional legal databases, by a human being. These platforms are incredibly powerful and have many uses in the law: form divorces, discovery requests, suggested errors in documents, anticipated questions at oral argument. But legal briefing is not one of them. Here’s why. These platforms in their current states are prone to hallucinations and bias. On hallucinations, they make stuff up—even quotes and citations. Another issue is reliability or bias. While attorneys swear an oath to set aside their personal prejudices, biases, and beliefs to faithfully uphold the law and represent their clients, generative artificial intelligence is the product of programming devised by humans who did not have to swear such an oath. As such, these systems hold no allegiance to any client, the rule of law, or the laws and Constitution of the United States (or, as addressed above, the truth). Unbound by any sense of duty, honor, or justice, such programs act according to computer code rather than conviction, based on programming rather than principle. Any party believing a platform has the requisite accuracy and reliability for legal briefing may move for leave and explain why. Accordingly, the Court will strike any filing from an attorney who fails to file a certificate on the docket attesting that the attorney has read the Court’s judge-specific requirements and understands that he or she will be held responsible under Rule 11 for the contents of any filing that he or she signs and submits to the Court, regardless of whether generative artificial intelligence drafted any portion of that filing. A template Certificate Regarding Judge-Specific Requirements is provided here.“
News From Around the US
Colorado
Upon stipulation, a former Deputy DA has been publicly censured for his failure to seek restitution, as per the plea agreement with the defendant, before the statutory deadline and despite repeated inquiries from the victim’s attorney. People v Jonathan D. Healy, 23PDJ008 [public citation] (Colo 5/1/23).
Wyoming
In a 75-page opinion, the Wyoming Supreme Court laid out its reasons for disbarring a former District Attorney, who caused concern among the local judiciary in her very first year in office. Among the many reasons she lost her law license: she was derelict in fulfilling statutory and court-ordered discovery obligations in cases she herself was handling and lied about the reasons for her lack of compliance (she also made misrepresentations during her attorney disciplinary proceeding); in one case, the trial court ordered preclusion of DNA evidence as a sanction, and the case was then dismissed with prejudice. Board of Professional Responsibility v. Leigh Anne Manlove, 2023 WY 27 [Court’s public domain citation] (Wyo. 4/4/23).
New CLE requirement for all attorneys starting 2023
To read the new CLE cybersecurity requirements and an article on this, see: