Category Archives: Ethics

Failure to disclose compiling officer’s identity does not amount to Brady violation


A "omniform system complaint" report that omitted the compiling officer's name was turned over in a robbery prosecution. In People v. Bayard (Ct. App. 11/17/2010), the Court of Appeals held that this was not a Brady violation warranting reversal, as the defense argued. The Court held that even if the omitted named "had exculpatory or impeachment value," no possibility existed that the proceedings would be any different if the officer's name was included. Further, as an "ameliorative measure," the trial court allowed the defense to challenge the complainant's identification by providing a non-testifying eyewitness. (RB/LC)


Is it IAC to ask for lesser-included offenses that your client does not want?

In an attempt to give the jury some "leeway" to somewhat negotiate a verdict, defense counsel urged the court, during a charge conference, to give jury instructions for both Murder and Manslaughter 1° and 2°, instead of just Murder, as the defendant himself wanted. Although Manslaughter 1° and 2° carries significant prison time, charging Murder by itself would limit the jury’s options. Ultimately, however, counsel acquiesced to his client's wishes and abandoned his efforts to obtained lesser-included counts in the jury charge.  This scenario—defense counsel requesting lesser offenses that his client did not want—in People v. Colville (2d Dept. 10/5/2010) raised an ineffective assistance of counsel claim; it was ultimately rejected. 

In a signed opinion by Justice Chambers, the court engaged in a discussion about the federal and New York standards of assistance and ultimately concluded that defense counsel’s behavior was in accord with constitutional principles and ABA guidelines. The court noted that a defendant without counsel retains authority over "fundamental decisions" while counsel has authority over "strategic and tactical" ones.  As to which category the decision to request lesser-included offenses falls under, other courts are split.  Ultimately, even if the lesser-included offenses were considered valid as either fundamental or strategic, it did not matter because the defendant was not deprived of the effective assistance of counsel. Specifically, if it was “fundamental,” the defendant made the ultimate decision; if “strategic,” counsel did not overrule the defendant, but rather gave him a choice. Either way, defendant had meaningful representation.  (RB/LC)


NYSP no-plea-bargaining policy not a constitutional violation

The New York State Police's "no-plea-bargaining" policy does not violate an individual’s equal protection or due process rights when the officer who issued the ticket is the prosecutor.

In People v. Murphy (2d Dept. 9/20/2010), the defendant was charged with Speeding. The defendant moved to dismiss and emphasized that, pursuant to the county DA policy, the trooper who issued the ticket was also the appointed prosecutor. The Justice Court granted the defendant’s motion to dismiss the information and reasoned that the dual role of the trooper would undermine confidence in the justice system. 

The Second Department disagreed. Because the policy does not implicate a (1) suspect class or (2) fundamental right, it should be upheld as long as there is a rational basis. Here, the policy is a reaction to the shortage of assistant district attorneys. Thus, this policy was rationally related to the objectives of "eliminating the appearance of impropriety and ensuring the fairness of the proceeding."

But, as the dissent recognizes, individuals may be treated differently depending on whether the ticket issued was by an New York State Police officer or a local police officer. Justice Iannacci argued that a rational basis does not exist when "disparate treatment of otherwise similarly situated citizens."  Justice Iannacci would have dismissed the simplified traffic information due to a legal impediment—specifically, that the delegation leads to an Equal Protection Clause violation. (RB/LC)

Two AT2 reversals for prosecutorial misconduct

Today's batch of decisions from the Second Appellate Term include two reversals for prosecutorial misconduct.

In the first, People v. Gutierrez (2d App. Term 6/21/2010), the defendant was on trial for Sexual Abuse 2º and Endangering the Welfare of a Child.  The prosecutor referred to the defendant taking "trophies" for his "collection," which implied that he had abused other children.  The majority found that this was reversible error.  In dissent, Justice Golia wrote that the curative instructions given by the court were sufficient to ameliorate any prejudice.

The second case, People v. Suh (2d App. Term 6/21/2010), involved a Brady violation.  It too was a sex crimes case.  The People failed to disclose the complainant's criminal record, which was readily available.  Here, the case was a close question and the complainant's credibility was directly at issue.  (LC)  

Columbia Law launches “collateral consequences calculator”

The Supreme Court's recent decision in Padilla v. Kentucky requires defense attorneys to advise their clients on the immigration consequences of pleading guilty.  To help attorneys advise their clients, Columbia Law School has created a web-based "collateral consequences calculator."  A user simply selects a Penal Law charge and the website returns a report about immigration and public housing consequences for a conviction of that crime. 

I played around with the calculator a bit this morning.  It seems like a valuable tool, although I still prefer the simple and easy-to-use reference charts from the New York State Defenders Association's Immigrant Defense Project.  Although the Columbia site adds public housing information, no appellate court has yet to hold that attorneys have a duty to advise clients that their guilty pleas may impact their ability to obtain NYCHA housing and, given the Court of Appeals' recent decision on collateral consequences, I don't see it happening anytime soon.  In any event, regardless of whether it is constitutionally required or not, it is important to know that certain convictions can trigger almost certain eviction from public housing (however, there are escape-valve provisions that allow public housing residents to plead for an exception to the rule).  For some clients, structuring the right guilty plea may enable them to avoid becoming homeless.  (LC)