Ethics Watch 1st Quarter 2021


Professional Conduct Resources

The Right Thing

Code of Conduct

1st Q 2021 New York State Ethics Decisions

Brady/Giglio/Rosario & Other Discovery Issues

Court of Appeals

People v McGhee (Darrin), 2021 NY Slip Op 01836 (3/25/21) – On People’s appeal, unanimous Court agreed that App. Div.’s vacatur of 2015 murder conviction [180 AD3d 26 (1st Dept 2019)] should be reversed. “[T]here is no reasonable possibility that the People’s failure to disclose the witness statement at issue undermined the fairness of defendant’s trial or impacted the verdict…. The undisclosed witness’s description of the shooter and his flight path did not differ in any material respect from that of the eyewitness who identified defendant in court as the perpetrator. Moreover, the jury’s verdict was supported by considerable other evidence…. Under these circumstances, the undisclosed witness statement lacked sufficient impeachment value to cast any doubt on the fairness of defendant’s trial (compare People v Rong He, 34 NY3d 956, 959 [2019]). Furthermore, considering the totality of the evidence, there is no reasonable possibility that the statement supported an alternative theory of defense, nor has defendant demonstrated any likelihood that the statement would have led to additional admissible evidence…. Accordingly, defendant has failed to show that ‘prejudice arose because the suppressed evidence was material’ [internal punctuation and citations omitted].”

1st Dept

People v Richardson (James), 2021 NY Slip Op 01337 (3/4/21) – Court rejected defendant’s argument that a new trial should be ordered because the People did not give him “a detective’s handwritten notes of an interview of the victim” until the eve of trial; defendant was able to make use of this Brady material in cross-examining the victim. As for defendant’s claim that he was deprived of the opportunity to call the detective (retired as of the time of trial) as a witness, “defendant did not request a continuance for that purpose, either before trial or after the victim’s testimony, and did not follow up on the court’s suggestion to subpoena the retired detective’s contact information. In any event, defendant’s assertion that the detective’s testimony would have been helpful to the defense is speculative, and there is no reasonable possibility that the result of the trial would have been different if the notes had been disclosed earlier (see People v Fuentes, 12 NY3d 259, 263 [2009]).”

3rd Dept

People v. Barzee (Saio) 2021 NY Slip Op 00052 (1/7/21) – There was no Brady violation where the prosecutor did not turn over to the defendant alleged exculpatory information from a prison disciplinary hearing because the prosecution was not in possession of that material and was not under any obligation to locate and obtain material from a prison disciplinary hearing for the purpose of turning it over to the defense.  The prosecution is only required to turn such material over to the defense if the prosecution is in possession of it.

People v. Sumpter (Shamar), 2021 NY Slip Op 01158 (2/25/21) – Two indictments charging drug sales were consolidated.  The first indictment accused defendant of drug sales on two different dates and the second indictment accused him of a sale on a third date.  The CI from the third sale had been subpoenaed, and the prosecutor spoke with her three days before the trial commenced; the prosecutor emphasized the witness’ obligation to testify and the CI answered that she would not appear.  When the CI did not appear to testify on the second day of the trial as scheduled, the prosecutor promptly sought aa material witness order. Ultimately, the witness did not testify.  At the close of the People’s case, the court granted defendant’s motion to dismiss the charges relating to that third sale. There was no Brady violation. Either party may seek a material witness order to secure the attendance of a witness, and the opposing party is not entitled to notice of such application.

People v. Wideman (Kamil), 2021 NY Slip Op 01805 (3/25/21) – Reversal of drug conviction not required.  Shortly after jury selection commenced, the prosecution disclosed that there was an allegation that in an unrelated case the police investigator had incorrectly testified that he had overheard a police informant conducting a drug transaction in real time through a wire; however, in that case the informant had not been equipped with a listening device.  Focusing only on the third element of a Brady violation, i.e., that the information was material or that there was a reasonable possibility that had the information been timely disclosed, the information would have changed the outcome of the proceeding, the Third Department ruled that there was more than sufficient evidence presented at trial to establish defendant’s possession of the drugs. A civilian witness testified that she had seen a third person provide the defendant with heroin and cocaine on a number of prior occasions and two troopers testified that they observed the baggie containing the narcotics exit the defendant’s pants as he fled.  As a result, earlier disclosure of the impeachment evidence would not have resulted in a different outcome.

Trial Courts

People v Bell, 2021 NY Slip Op 21048 (Sup Ct, Queens County 3/8/21) – The court vacated the convictions of Bell, Bolt, and Johnson, co-defendants convicted of the 1996 murders of the owner of a check-cashing store and an off-duty police officer, after finding that the People failed to turn over impeachment evidence and third-party culpability information in violation of their Brady obligation.

Among the evidence not turned over were police reports, a prosecutor’s handwritten notes and witness statements that contradicted aspects of the people’s case and implicated members of the so-called “Speedstick gang” for the crime. In 1997, the Daily News reported a connection between an armored car robbery that the Speedstick gang was believed to have done and the murders Bell, Bolt, and Johnson were accused of. This article prompted the defendants’ attorneys to make discovery demands to the District Attorney’s Office, requesting any information in its possession, or in the possession of the NYPD, implicating the Speedstick gang defendants in the crimes their clients were accused of.

The Queens County District Attorney’s Office, after an investigation by their Conviction Integrity Unit, agreed with the portion of the defendants’ motion that there was a reasonable possibility that, had this suppressed evidence been disclosed, the outcome of these trials would have been different. The People maintained however, that the denials made on the record by the trial ADAs were made in good faith. The court disagreed, noting that there were no affirmations from the trial ADAs in the People’s response, and that one of the ADA’s own handwritten notes demonstrated their knowledge – making the on-the-record denial a “deliberate falsehood.”

Grand Jury

4th Dept

People v Owens (Maurice), 2021 NY Slip Op 00958 (2/11/2021) – Court agrees with defendant that the indictment should be dismissed as the People did not seek permission before representing the case to the Grand Jury after the dismissal of the first indictment. The court held that the defendant was entitled to the relief even though he did not move for dismissal of the indictment prior to his guilty plea. “Athough, here, defendant failed to make a motion to dismiss the indictment issued by the second grand jury pursuant to CPL 210.20 (1), the failure of the People to obtain from the court authorization to submit the matter to the second grand jury deprived the second grand jury of jurisdiction to hear the matter, thereby rendering void the indictment issued by the second grand jury and depriving the court of jurisdiction, and the right to challenge a lack of jurisdiction cannot be waived by defendant [citation omitted]. Under these circumstances, we must dismiss the indictment issued by the second grand jury that is at issue on this appeal (see CPL 210.35 [5]; People v Wilkins, 68 NY2d 269, 276-277 and n 6 [1986]; see generally People v Tomaino, 248 AD2d 944, 947 [4th Dept 1998]).”

People v Graham (Clifford), 2021 NY Slip Op 01598 (3/19/2021) – The court addressed and rejected several claims of impropriety in Grand Jury. First, defendant was restrained when he testified in Grand Jury.  The court held, “the prosecutor twice instructed the grand jury not to draw any negative inference from the restraints, and we conclude that those instructions were “sufficient to dispel any potential prejudice to defendant” (citations omitted). The defendant also challenged the prosecutor’s instructions to the Grand Jury. The court held, “We further conclude that ‘defendant has not established a possibility of prejudice justifying the exceptional remedy of dismissal of the indictment’ based on the prosecutor’s instruction to the grand jury on constructive possession (People v Wisdom, 23 NY3d 970, 973 [2014]).” Finally, the court agreed with defendant “that the prosecutor erred in presenting to the grand jury testimony from the victim contradicting evidentiary facts that were resolved in defendant’s favor at the first trial (see People v O’Toole, 22 NY3d 335, 338 [2013]; see also People v Williams, 163 AD3d 1418, 1420 [4th Dept 2018]).” But it concluded that “the submission of that testimony involved ‘the erroneous handling of evidentiary matters, [which does] not merit invalidation of the indictment’ where, as here, the remaining evidence is sufficient to establish the charge for which defendant was indicted (citations omitted).”

Direct

1st Dept

People v Alvarez (Clayton), 2021 NY Slip Op 00092 (1/7/21) – Conviction reversed and new trial ordered, in part because “evidence that defendant accessed a pornography website on [his cell] phone shortly before committing the charged offense should have been excluded at trial as improper propensity evidence.” “This evidence was not admissible to establish defendant’s intent in sexually abusing the victim, which could be readily inferred from the charged conduct itself (see People v Leonard, 29 NY3d 1, 8 [2017]). While it may have been admissible to establish defendant’s intent in entering the victim’s apartment, its probative value was outweighed by its prejudice (see id.), and the admission of this evidence was not harmless.”

People v Nunez (Maximilian), 2021 NY Slip Op 00266 (1/19/21) – CPW 2 conviction reversed as a matter of law. New trial required because “while some evidence regarding the large-scale drug trafficking crimes with which defendant’s girlfriend and her relatives were charged was relevant to provide background information regarding the search of the apartment where the pistol was found and defendant was arrested, and to prove that defendant’s possession of the pistol was knowing, the very extensive evidence admitted in this regard was unnecessarily prejudicial (see People v Montanez, 41 NY2d 53, 58 [1976]).”

People v Stroud (Nysia), 2021 NY Slip Op 00375 (1/21/21) – Testimony “about a prior incident in which defendant was present when the police executed a search warrant and recovered drugs at her aunt’s apartment” properly part of the People’s direct case. “This evidence was highly probative to explain how defendant, a police officer, became the target of an undercover drug operation, and to prevent unfair speculation by the jury in that regard (see People v Morris, 21 NY3d 588 [2013]). The probative value of the evidence outweighed any prejudicial effect.”

People v Sykes (Lorenzo), 2021 NY Slip Op 00530 (2/2/21) – Prostitution advertisements, “posted during the months preceding the time period set forth in the indictment” and “bearing telephone and email addresses associated with defendant and the codefendants,” were properly admitted on People’s case in chief at promoting prostitution trial. “These ads were not evidence of uncharged crimes, but instead were relevant to prove elements of the charged crime of third-degree promoting prostitution, because they ‘established the existence of a prostitution business’ that defendant ‘continued to manage or supervise into the period covered by the indictment’ [People v Gomez, 183 AD3d 544, 545 (1st Dept 2020)]. Alternatively, ‘even if viewed as uncharged crime evidence,’ the ads ‘were also highly probative to show a common scheme or plan, and their probative value outweighed any prejudicial effect’ [citation omitted], particularly in this nonjury trial.”

2nd Dept

People v DeLaCruz (Anthony), 2021 NY Slip Op 01785 (2nd Dept 3/24/21) – The court found that the People improperly used defendant’s pre-trial silence against him as part of their direct case and that this error was not harmless. The court exercised its interest of justice jurisdiction and reversed the conviction. The court specifically noted that the People could not rely on cases where there were conspicuous omissions from the defendant’s statements to the police used to impeach defendant on cross-examination.

3rd Dept

People v. Young (Sylvester), 2021 NY Slip Op 00206 (1/7/21) – Molineux evidence of defendant’s gang affiliation, use of aliases, possession of weapons, prior drug sales and his previous incarceration were properly received to provide needed background information concerning defendant’s relationships with certain witnesses and the shooting victims.  In addition to explaining how the defendant knew the deceased victim, such evidence was relevant to the issue of the identity of the shooter, defendant’s motive for the killing  and the context in which the defendant’s pre and post shooting activities occurred.

4th Dept

People v Murray (Christina), 2021 NY Slip Op 00722 (2/5/21) – Defendant was convicted after trial of insurance fraud and falsifying business records regarding insurance claims she made in the aftermath of a house fire. The court reversed and ordered a new trial on the ground that it was prejudicial for the People’s arson investigator to testify that the fire in the defendant’s home had been intentionally set. As the defendant had not been charged with arson, the court found that this information was irrelevant to defendant’s guilt of the crimes with which she was charged. Because the evidence against her was not overwhelming, this error could not be considered harmless.

People v Smalls (Markese), 2021 NY Slip Op 00685 (2/5/21) – The court rejected defendant’s claim that the trial court violated the rule of completeness by allowing the People to play specific portions of defendant’s video recorded interview with law enforcement. The court held, “Here, the rule was not violated because the entire statement was admitted into evidence. Thus, “defendant could have readily played any portion of the recordings for the jury on cross-examination or during his case-in-chief” (People v Brinkley, 174 AD3d 1159, 1165 n 1 [3d Dept 2019], lv denied 34 NY3d 979 [2019]).”

People v Wisniewski (Timothy), 2021 NY Slip Op 00950 (2/11/21) – In a case in which the defendant was convicted of Criminally Negligent Homicide regarding a death which occurred while the defendant and codefendant were operating a vessel under the influence of drugs or alcohol, the court rejected defendant’s contention that the trial court erred in allowing testimony that the defendant was present during a marijuana sale between the codefendant and the defendant’s son. The court ruled that defendant’s objection on relevance grounds did not preserve his contention that the testimony should have been barred by Molineux. Moreover, “defendant opened the door to that testimony by eliciting testimony on cross-examination regarding those marihuana purchases (see generally People v Stoutenger, 121 AD3d 1496, 1497 [4th Dept 2014], lv denied 25 NY3d 1077 [2015]) and, contrary to defendant’s contention, the testimony in question was relevant to establish why the codefendant was at defendant’s home on the evening before the victim’s death, to establish the nature of the relationship between defendant and the codefendant, and to complete the narrative of events leading up to the victim’s death (see generally People v Ray, 63 AD3d 1705, 1706 [4th Dept 2009], lv denied 13 NY3d 838 [2009]).”

People v Rath (David), 2021 NY Slip Op 01667 (3/19/21) – The court held that out of court statements made by the victim in a rape prosecution to two witnesses were properly admitted. “The victim told her aunt at the first suitable opportunity [that defendant had raped her], and the testimony was therefore admissible under the prompt outcry exception to the hearsay rule (citations omitted). Contrary to defendant’s contention, the aunt did not give impermissible details of the incident (citations omitted). The court also properly allowed a nurse to testify regarding statements made by the victim during the sexual assault examination inasmuch as the majority of those statements fell within the exception to the hearsay rule of statements relevant to medical diagnosis or treatment (citations omitted). To the extent that some of the statements went beyond that exception, defendant was not deprived of a fair trial because the error was harmless [see People v Ortega, 15 NY3d 610, 619-620 (2010)].”

People v Conley (Kaitlyn), 2021 NY Slip Op 01676 (3/19/21) – The court held, in a poisoning case, that defendant opened the door to Molineux evidence regarding the illness of defendant’s boyfriend — after defendant gave him a nutritional supplement shortly before the poisoning of the boyfriend’s mother, the victim — by discussing the incident in her opening statement.

People v Emmons (Jeffrey), 2021 NY Slip Op 01896 (3/26/2021) – The court rejected defendant’s challenge to the admission of Molineux evidence. “Here, a police officer’s testimony about defendant’s prior criminal mischief conviction was properly admitted for the purposes of establishing defendant’s intent and absence of mistake. Specifically, the challenged testimony was relevant for those purposes because it established that defendant was aware that he could be charged with a criminal offense for damaging police property, i.e., that he did not have ‘any reasonable ground to believe that he . . . ha[d] [the] right to’ damage property belonging to the police (Penal Law § 145.05). Contrary to defendant’s contention, the probative value of that evidence was not outweighed by its potential for prejudice… and, moreover, the court’s prompt limiting instruction ameliorated any prejudice (citations omitted).”

People v Butler (Calvin), 2021 NY Slip Op 01927 (3/26/21) – Defendant was convicted after a bench trial of drug possession charges that involved activity in two different counties. The 4th Department rejected defendant’s challenge to the trial court’s Molineux ruling allowing the People to adduce evidence of defendant’s drug sale activity in a third county.  “The drug sale in Seneca County on the day of defendant’s arrest was the catalyst for the search of the Ontario County residence. It was the People’s theory that defendant would retrieve drugs from that residence and sell them to, inter alia, the confidential informant in Seneca County. As a result, the Molineux evidence was relevant to establish that defendant intended to sell the drugs [citations omitted]. Such evidence was also relevant ‘to complete the narrative of events leading up to the crime for which defendant [was] on trial,’ and ‘the probative value of such evidence outweighed its prejudicial impact’ [citations omitted]. Unlike People v Chaney (298 AD2d 617, 617-619 [3d Dept 2002], lv dismissed in part and denied in part 100 NY2d 537 [2003]), a case cited by defendant, this is not a situation where the volume of drugs or other evidence made it clear that defendant intended to sell the drugs. Moreover, defendant put his intent at issue when defense counsel cross-examined the People’s witness regarding whether the amount was consistent with personal use [citations omitted].”

Defendant further contended that the prosecutor violated the trial court’s Molineux ruling by discussing evidence of other drug activity that had been precluded by the court. The precluded activity was referred to in jail calls admitted into evidence. But defendant’s accusation of prosecutorial misconduct was not preserved for review, and the court found it lacked merit. “The prosecutor made no reference to precluded evidence in his opening statement and, when submitting the relevant exhibits to the court in this nonjury trial, the prosecutor asked the court to consider them ‘in conjunction with [its] Molineux ruling,’ specifically noting that defendant made references to sales that were ‘not . . . relevant for this trial.’ The trial judge indicated that he understood that defendant referenced sales that ‘took place before the date in question,’ but stated that he would ‘disregard those and place them out of [his] mind as if [he] didn’t hear them’.”

Cross-examination

Court of Appeals

People v Vasquez (Luis), 2021 NY Slip Op 01837 (3/25/21) – Prosecutor cross-examined defense witness as to three other crimes in which he had left the scene in a dark SUV with the same, or partial, license plate number corresponding to plates on SUV used in the instant crime, and made use of that in her summation. Prosecutor’s efforts to link this defendant with the uncharged crimes were improper, but deemed harmless by the Court. “The proof of defendant’s guilt was overwhelming, and the trial evidence demonstrated that there is no ‘significant probability, rather than only a rational possibility,’ that the jury would have acquitted defendant but for the prosecutor’s references to the uncharged crimes [citation omitted].”

Summation

1st Dept

People v Corey (James), 2021 NY Slip Op 00394 (1/26/21) – “The portions of the prosecutor’s summation challenged by defendant on appeal did not shift the burden of proof to defendant, and were responsive to defense counsel’s summation [citations omitted]. In summation, defense counsel offered far-fetched scenarios under which defendant might have entered with the permission of the non-testifying occupant of the apartment. A fair reading of the challenged remarks is that the prosecutor was arguing that, rather than being reasonable hypotheses of innocence, these scenarios were speculative and unsupported by the evidence. This was a permissible argument for the prosecutor to make (see e.g. People v Nestman, 220 AD2d 232, 233 [1st Dept 1995], lv denied 88 NY2d 851 [1996]). Furthermore, the prosecutor never implied that defendant was obligated to introduce any evidence, and the court thoroughly charged the jury on all matters relating to the burden of proof.”

3rd Dept

People v. Sammeth (Travis), 2021 NY Slip Op 00212 (1/14/21) – In his summation, defense counsel argued that Task Force officers were not worthy of belief; they had given inaccurate testimony before the grand jury; their grand jury testimony was ’generously incorrect;’”  the “officers had ‘embellished,’ fib[bed],’ and ‘fabricat[ed] and ‘they got their indictment based on falsehoods shared by the three witnesses they called here to testify at trial.’”   In his summation, the prosecutor argued that defense counsel had not accurately characterized  the officer’s grand jury testimony.  The prosecutor then argued that the errors in the officers’ testimony did not transform them “’into a liar and a perjurer such that there is a conspiracy here. . . . Also note, if there was a conspiracy in the [g]rand [j]ury it’s me too.’”  Trial court denied defense counsel’s motion for a mistrial; it did, however, give a curative instruction. The Appellate Division affirmed the conviction.  Although the remark was improper, it was an isolated incident, “was not part of a flagrant and pervasive pattern of prosecutorial misconduct [internal punctuation and citation omitted]” and did not deprive defendant of due process or a fair trial.

4th Dept

People v Smallwood (Martin), 2021 NY Slip Op 00768 (2/5/2021) – Court rejected defendant’s contention that he was deprived of a fair trial by prosecutorial misconduct during the People’s summation.  Without detailing the comments, the court held that one comment made by the prosecutor was fair response to defendant’s summation and fair comment on the evidence, and that another comment, which may have shifted the burden of proof was cured by the court’s instructions to the jury.  As for defendant’s further contention that “the prosecutor inappropriately displayed emotion during summation, that ‘claim[] . . . [is] unsupported by the record…. With respect to defendant’s final contention in this regard, that the prosecutor improperly threw or dropped a board during summation, ‘[t]he prosecutor’s demonstration . . ., even if inappropriate, was not pervasive so as to deprive defendant of a fair trial’ [citations omitted].”

Conflict of Interest-Appearance of Impropriety

3rd Dept

People v. Hartle (Mark), 2021 NY Slip Op 01292 (3/4/21) – Upheld denial, without a hearing, of CPL 440.10 motion to vacate judgment of conviction. One of defendant’s two attorneys had, unbeknownst to the defendant while his prosecution was pending, previously represented the District Attorney.  This was a potential (rather than an actual) conflict because the representation of the District Attorney was not simultaneous; the attorney’s representation of the DA terminated more than six months before defendant hired the lawyer. Where there is a potential conflict of interest which was not waived by the defendant, reversal/vacatur of the judgment is required only if the defendant establishes that the potential conflict “operated on or affected the defense.”  People v Sanchez, 21 NY3d 213, 216 (2013).  Defendant here did not meet that heavy burden, for his motion papers did not set forth allegations demonstrating that the potential conflict had an actual effect on the defense.  In addition, a review of the record revealed that both of defendant’s attorneys rendered effective assistance.

4th Dept

People v Spencer (Marquille), 2021 NY Slip Op 00725 (2/5/2021) – Court rejected defendant’s claim of ineffective assistance of counsel as unpreserved.  Defendant learned after the verdict that his attorney had accepted a job with the Erie County District Attorney’s Office but did not move to set aside the verdict.  The court opined that the claim should be made by way of a 440 motion as it is based on information both on the record and outside of the record. However, the court ultimately held, “to the extent that the record permits review of defendant’s contention that he was denied effective assistance based on defense counsel’s conflict of interest following his post-verdict acceptance of future employment with the ECDA, we conclude that it is unavailing (see People v McCrone, 12 AD3d 848, 849 [3d Dept 2004], lv denied 4 NY3d 800 [2005]).”

Miscellaneous

3rd Dept

People v. Brown (Derrick), 2021 NY Slip Op 01442 (3/11/21) – Defendant entered a guilty plea to an indictment charging second degree burglary and other crimes with the understanding that the People would recommend a sentence of no more than 12 years to be followed by 5 years’ post-release supervision.  The County Court noted that it was free to impose a 15-year sentence, but did not mention the possibility of a consecutive sentence.  At sentencing, the prosecutor recommended that defendant be sentenced on the burglary charge to the 12-year determinate term and five years’ post release supervision as contemplated at the time of the plea — but also recommended a consecutive term of 1⅓ to 4 years on the conspiracy count and concurrent terms on the remaining counts.  County Court imposed the sentences recommended by the prosecutor at sentencing with the result that defendant was sentenced to an aggregate term of 13½ to 16 years’ imprisonment, plus 5 years’ post release supervision.  The Appellate Division found that the sentence imposed violated the prosecutor’s sentencing promise (as well as County Court’s statement at the plea that the maximum sentence was 15 years), and after finding the sentence imposed was harsh and excessive, it modified the sentence to direct that all the terms run concurrently.

4th Dept

People v Garcia (Ruben), NY Slip Op 01571 (3/19/2021) – In a sexual assault case the court rejected defendant’s contention that his rights to a prompt prosecution were violated by the eight-year, ten-month interval between the incident and the commencement of the action against him. The court found that six of the years were not attributable to the People as the victim was unable to identify the defendant and his DNA was not in the CODIS database during that time period.  However, the court reversed the conviction as it found that the trial court should have granted defendant’s request for a missing witness charge as to the complainant’s boyfriend. The burden was on the People to show that the boyfriend’s testimony would have been cumulative, but they failed to do so. As the victim’s testimony was inconsistent regarding the details of the assault the court found this error was not harmless.

Disciplinary & Other Proceedings/Sanctions

  • Attorney, a former assistant district attorney, engaged in sexual relations with two clients whom he represented in Family Court. He represented one of these clients without charging a fee. The attorney also communicated with this client by text message, threatening that he would tell the father of her child that she was engaging in sexual misbehavior and substance abuse. He was subsequently criminally charged with assaulting this client and with violating an order of protection issued on her behalf. He was ultimately convicted of a misdemeanor. He was also cited by the Grievance Committee with undignified conduct in court on an unrelated matter and with comingling personal and client funds. The committee found that his conduct was mitigated by the fact that he sought treatment for his alcohol, substance abuse and mental health issues and has no other disciplinary complaints since. The attorney was suspended from the practice of law for a period of six months. Matter of Albert (Matt), 2021 NY Slip OP 00772 (4th Dept 2/5/2021)
  • Former Chief of Investigations and of Government Corruption Bureau formally disbarred by Second Department following his conviction, in federal court, of (inter alia) witness tampering. Matter of McPartland (Christopher), 2021 NY Slip Op 01258 (2d Dept 3/3/21).

News From Around the US

Indiana
Indiana’s Supreme Court has suspended, for a minimum of 4 years, a former, elected county prosecutor who was temporarily suspended from the practice of law in 2019 following his plea of guilty to criminal confinement, domestic battery, identity deception, and official misconduct. Matter of Cooper (Bradley), 161 NE3d 362 (Indiana Sup Ct 2/3/21).

Massachusetts
Finding that the prosecutor’s cross-examination of defendant and his summation “created a substantial risk of a miscarriage of justice,” the Appeals Court of Massachusetts ordered a new trial of the 2015 murder indictment. The cross-examination was replete with improprieties the SJC has condemned in the past, and the prosecutor repeatedly “crossed the line” in his closing argument by, e.g., mocking the defense arguments “with excessive rhetoric.” Commonwealth v Fahey (Paul), 99 Mass App Ct 304 (Mass App Ct 3/15/21).

New Jersey
The New Jersey Supreme Court reversed and ordered a new trial because of the prosecutor’s comments and use of a PowerPoint slide in summation at the trial where the central issue was whether defendant committed second degree robbery (theft using force or threat of force) or third degree theft (“exercising unlawful control over the movable property of another.”). “In the course of the alleged robbery, defendant did not display a weapon or make a verbal threat. Instead, he passed a note to a young female teller which said, ‘Please, all the money, 100, 50, 20, 10. Thank you.'”. The jury convicted him of the robbery charge. Court concluded that “the prosecutor’s comments and the extra-evidentiary movie photograph made it more likely that the jury would reject the defense that only a theft occurred” and was so prejudicial as to deny the defendant a fair trial. State v Williams (Damon), 243 A3d 647 (NJ Sup Ct 1/19/21).

“The prosecutor showed the jury a PowerPoint presentation in her closing that contained a still photograph from the movie The Shining and commented, ‘if you have ever seen the movie The Shining, you know how his face gets through that door.’ The PowerPoint slide depicted Jack Nicholson in his role as a violent psychopath who used an ax to break through a door while attempting to kill his family.” The slide featured the words spoken by Nicholson in the movie scene as he stuck his head through the broken door –” Here’s Johnny!” — with “ACTIONS SPEAK LOUDER THAN WORDS” as its headline. In short, “in an attempt to establish that [the bank teller] feared for her wellbeing because of defendant’s conduct, [the prosecutor] went far beyond the evidence at trial to draw a parallel between defendant’s conduct and that of a horror-movie villain.”

Combination of trial court’s erroneous evidentiary ruling and the prosecutor’s improper remarks during summation prompted the Supreme Court of New Jersey to reverse the convictions arising out of a slashing during a fight that started over a honking horn. A cell phone video, taken by defendant’s uncle, showed defendant and his relatives trying to explain their side of the incident to Jersey City police officers, who brushed them off, saying repeatedly, “Take it to court.” Trial court precluded the defense from introducing the video on the ground it was inadmissible hearsay. But the video contradicted detective’s testimony that she had canvassed the area and found no witnesses. Video was also admissible under state’s evidence code once the prosecutor’s cross-examination suggested that the relatives’ testimony was a recent fabrication. Lastly, the prosecutor exploited the ruling in his summation by portraying the relatives as untruthful and weaving a false story that they had made no effort to give their account to police. State v Garcia (Gabriel), official citation not yet available (NJ Sup Ct 3/10/21).

Oklahoma
Supervising ADA publicly censured because DA Office employees in her unit who were not licensed legal interns, or were not yet otherwise authorized to practice law, appeared in court on behalf of the State during a period of time when the Office was short-handed, owing to a pre-election “exodus.” Three of the Supreme Court Justices joined in a concurring opinion that emphasized their belief that the First Ass’t DA and the District Attorney himself should bear blame as well. “For Ms. Jack to take the entire blame for the office failure to supervise is unfortunate and fundamentally unfair.” State ex rel. Okla. Bar Ass’n v Jack (Tara), official citation not yet available (OK Sup Ct 1/19/21).

Pennsylvania
As of March 25, 2021, the Bradford County District Attorney, who took office in January 2020, stands suspended from the practice of law pending further action by the Commonwealth’s Supreme Court. The DA is being prosecuted by the Pennsylvania Attorney General’s Office for a number of sexual offenses, allegedly committed against clients while he was in private practice, in addition to obstruction of justice and multiple counts of victim/witness intimidation. To date, the DA has refused to step down.

Prosecutor demoted after working as a DoorDash driver on county time.