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Court Hears Motion to Disqualify Defendant Counsel


The People’s motion for an order disqualifying Defendant’s counsel and precluding use at trial of statements of prosecution witnesses taken by defense counsel or his associates is denied. Defendant’s cross-motion for an order dismissing the accusatory instrument as facially defective, in the interests of justice, or on account of the People’s failure to be ready for trial within the prescribed time, and suppressing statements he made to law enforcement officials in violation of the procedures enunciated in a case, is denied as noted below.

A Nassau lawyer said that the People commenced this action in November 2005 by the filing of what is labeled an information that accuses Defendant of sexual abuse in the second degree. By the factual part (see CPL 100.15[3]), the complainant, a Detective attests that “on 11/19/2005 and about 11:00 a.m. while at a Freeport, the defendant did enter the bedroom of the mentally retarded 16 year old female and did expose his erect penis. Said defendant did take the victim’s hand in his own and put the victim’s hand on his erect penis and did masturbate himself to ejaculation with the victim’s hand.”

“The above is based on information and belief. The source of said information and the basis of the belief is the interview and statement of the victim and the interview and statement of admission of the defendant.”

Although the information contains the statement “[s]upporting deposition of 16 year old female attached hereto and made a part hereof,” no supporting deposition is attached to the accusatory instrument. Neither is Defendant’s statement.

Defendant was arraigned on the criminal charge on November 23, 2005. He has throughout been represented by present counsel. According to the notations made by the clerk on the court file, Defendant has requested virtually all of the adjournments, although on some dates, no marking is made. Moreover, Defendant made a pretrial omnibus motion after the case was first marked for trial, which motion, pending for approximately two months, I decided by order May 25, 2006.

Three months after commencement of this action, in or about February, 2006, the Nassau County Department of Social Services commenced a neglect proceeding in the Nassau County Family Court (see Family Court Act Article 10) against the alleged victim’s mother Defendant’s sister apparently on account of the alleged conduct that gives rise to this action. Shortly thereafter, the County commenced a derivative proceeding against Defendant, who is thus a respondent in the Family Court. Defense counsel was his attorney of record in that court. The mother is represented in the Family Court by a lawyer, who on this motion affirms she has represented the mother in the Family Court since on or about March 10, 2006.

The People now move for virtually identical relief in this criminal action. In support, they urge that defense counsel’s conduct is such an egregious violation of the Code of Professional Responsibility that he must be disqualified from representing Defendant in this criminal action as well, “especially in light of [defense counsel’s] attempted use of the product of these improper communications to seek a dismissal of the criminal matter. This motion is based on [defense counsel’s] improper communications given the Family Court representation of the parties, and not on his having spoken with witnesses in a criminal case such as this.”

The People point to DR 7-104, which prohibits an attorney from communicating “on the subject of the representation” with “a party” whom the attorney knows is represented by a lawyer “in that matter” unless the attorney has the prior consent of the lawyer representing the other party. They also point to the purpose of affording minors representation in the Family Court as a basis for disqualification in this action. Insofar as they seek an order precluding use of the statements taken by defense counsel, they urge that it would be contrary to the interests of justice to allow use of the “product of this improper conduct,” although they do not concede that the statement purportedly made by the alleged victim was actually signed by her.

In opposition, defense counsel submits a 30-page affirmation, devoted largely to setting forth his view of his own accomplishments, experience and reputation. By another almost-as-large portion, he launches an ad hominem attack on the Nassau County District Attorney. Insofar as he focuses on the substance of the People’s motion, defense counsel urges, in effect, that because neither the alleged victim nor her mother is a “party” to this action, DR7-104 has no application; that, since the alleged victim is no longer under 18, she is no longer entitled to be represented by a law guardian, and therefore there is no violation; that, in any event, because it was his associates who appeared in Family Court, he personally was “not aware” that the alleged victim and her mother had counsel in the Family Court matter. He concludes that there was thus no intent to violate DR 7-104.

With regard to the cross-motion, defense counsel specially addresses only that prong which is for dismissal on account of the People’s claimed failure to be ready for trial within the statutorily prescribed period. In that regard, defense counsel offers “upon information and belief” only the bald conclusions that Defendant “has never asked for any adjournment to prepare for trial,” that “there is no excludable time,” and that, therefore, since this case has been pending for more than 90 days, dismissal pursuant to CPL 30.30(1)(b) is required. Defense counsel otherwise asserts, almost without context, that Defendant “is illiterate and speaks no English;” that statements attributed to him were taken in violation of the requirements of a land mark case; and, cryptically, that Defendant “has moved to preclude use of those statements.” Defense counsel expresses no recognition, however, that I have already made a ruling, noted above, on Defendant’s prior application to suppress his statement.

In reply, The People, on notice, however obliquely, that the sufficiency of the accusatory instrument is at issue, have unilaterally determined that the cross-motion should be held in abeyance until their motion is decided and they thus decline to address the cross-motion’s various prongs. They focus their reply on the disqualification issue as it pertains to this case, and in the process make passing reference to the need to have defense counsel appear as a witness “in order to determine the genuineness and circumstances of the purported recantations.” By his reply, Defendant, among other things, requests that his applications to dismiss be granted as unopposed.

Insofar as Defendant seeks dismissal in the interests of justice, I do have discretion to grant that relief, but that discretion is to be exercised sparingly, after careful consideration and analysis of the relevant, statutorily enumerated factors. Such a dismissal is not a vehicle for acquittal by motion, and it is a defendant’s burden to demonstrate that some compelling reason exists which warrants the dismissal. Defendant here barely pays lip service to the relevant factors and he thus presents no basis for granting this extraordinary relief. His request therefor is accordingly denied.

Insofar as Defendant seeks dismissal on account of the People’s claimed failure to be ready for trial within 90 days of commencement of this action, it is well-settled that any adjournments, regardless of the reason for them, that are granted at the defendant’s request or with his or her consent, as well as reasonable periods of delay resulting from other proceedings involving the defendant, including pre-trial motions, are excluded from the 90-day calculation. This is so even where the accusatory instrument is not a sufficient, trial-ready document. But while the notations on the court file are not dispositive, Defendant’s conclusory and patently erroneous “upon information and belief” assertion that none of the time this action has been pending is excludable is not sufficient to warrant dismissal pursuant to CPL 30.30(1)(b), even though the cross-motion is, in effect, unopposed.

Turning, finally, to the People’s disqualification motion, the right to counsel of one’s own choosing in a criminal case is a fundamental constitutional right that is not to be interfered with unless some competing matter of public policy so dictates. Ethical violations are often the basis for disqualification motions, but, while the courts are always concerned with the integrity of the judicial system and the preservation of ethical standards, the disciplining of attorneys who engage in misconduct is not of direct concern when ruling on such motions. It is instead the court’s function to exercise sound discretion in the context of the litigation then before it and to determine whether an act of professional misconduct, e.g., violates the rights of a party or otherwise infects the integrity of the proceedings before it so as to warrant the drastic relief of disqualification. I conclude that the differences between the Family Court proceeding and this criminal action warrant a difference in the outcome of the motion before me.

The purpose of a criminal prosecution is to correctly determine whether a defendant has committed a wrongful act, and if so, to assess blame and impose punishment. Any reasonable doubt about a criminal defendant’s guilt requires acquittal, and “zealous representation of a defendant in a criminal case is [thus] a matter of constitutional dimension, which warrants giving a criminal defense lawyer the broadest possible range of pre-trial investigation”. In contrast, the purpose of what is essentially a civil proceeding under Article 10 of the Family Court Act is “to protect children from injury and to help safeguard their physical, mental and emotional well-being”. The real subject of a neglect petition is not the respondent against whom it is brought, but the child it concerns, and “the orientation of Family Court is rehabilitative, directed at protecting the vulnerable child”.

Like the Family Court, I am unpersuaded by defense counsel’s assertions that he did not know that the alleged victim and her mother were represented by counsel. Given his experience, he certainly should have known of the representation, and neither he nor his associates should have communicated, either with the alleged victim, or her mother, without the consent of their respective attorneys. But the People point to no conduct on the part of defense counsel in the context of this litigation that warrants interfering with Defendant’s fundamental constitutional right to counsel of his own choosing. Indeed, it appears that they seek to have defense counsel punished here because of factors pertinent to the Family Court proceeding. But while the alleged victim whose rights defense counsel violated is the very focus of the Family Court proceeding, the considerations that are the underpinning of the Family Court’s ruling on the disqualification motion before it simply do not pertain here.

Neither the alleged victim nor her mother is a “a party” to the criminal action, and I am aware of no public policy or other consideration pertinent to this action that warrants interfering with Defendant’s fundamental, albeit not absolute, right to counsel of his own choosing (Matter of Abrams, supra). I therefore decline to disqualify defense counsel on account of his violation of Code of Professional Responsibility DR 7-104.

I also decline to preclude use at trial of the statements defense counsel obtained from the alleged victim and her mother. Apart from the fact that such a spector implicates the constitutional right to confront the People’s witnesses with prior inconsistent statements, in New York, exclusion of a statement is not an appropriate remedy for the misconduct about which the People complain.

To the extent that the People, by way of reply, purport to seek disqualification on the ground that defense counsel will be a witness at trial, that undeveloped ground is, at best, premature.

A person abused should be referred to our Nassau County divorce lawyers here in Stephen Bilkis and Associates. We will be glad to help you in our ways. We also have Nassau County Family Attorneys for other matters.

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