Brown v. Blumenfeld

• Decision Date: 19 December 2012
• Parties: In the Matter of Richard A. BROWN, etc., petitioner, v. Joel L. BLUMENFELD, etc., et al., respondents.
• Court: New York Supreme Court — Appellate Division

103 A.D.3d 45

957 N.Y.S.2d 171

2012 N.Y. Slip Op. 08725

In the Matter of Richard A. BROWN, etc., petitioner,

v.Joel L. BLUMENFELD, etc., et al., respondents.

Supreme Court, Appellate Division, Second Department, New York.

Dec. 19, 2012.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Ryan, James C. Quinn, Robert J. Masters, and Donna Aldea of counsel), petitioner pro se.

Paul, Weiss, Rifkind, Wharton & Garrison, LLP, New York, N.Y. (Mark F. Pomerantz and Jane B. O'Brien of counsel), for respondent Joel L. Blumenfeld.

WILLIAM F. MASTRO, J.P., PETER B. SKELOS, ANITA R. FLORIO, and L. PRISCILLA HALL, JJ.

SKELOS, J.

Elisaul Perez, a defendant in a criminal action being prosecuted by the petitioner, Richard A. Brown, the District Attorney of Queens County (hereinafter the District Attorney), was interviewed, prior to his arraignment, by an assistant district attorney (hereinafter ADA), and gave a videotaped statement. The interview was conducted pursuant to a program instituted by the District Attorney's office, under which arrested individuals are brought before an ADA just before arraignment, read a series of statements followed by Miranda warnings ( see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694), and questioned (hereinafter the Program). Perez moved to suppress his statement, and the respondent Joel L. Blumenfeld, an Acting Justice of the Supreme Court, Queens County, denied the motion, finding that he could not conclude that Perez's statement was involuntary. Nonetheless, Justice Blumenfeld precluded the People from introducing Perez's statement at trial on the ground that the District Attorney's program violated attorney-ethics rules. In this proceeding pursuant to CPLR article 78 in the nature of prohibition, the District Attorney seeks to have this Court prohibit Justice Blumenfeld from enforcing that order. We hold that, under the circumstances of this case, Justice Blumenfeld exceeded his authorized powers in precluding the People from introducing Perez's statement at trial, such that the remedy of prohibition lies to prevent him from enforcing the order, and that the exercise of this Court's discretion to grant that remedy is warranted.

In 2007, the District Attorney instituted a program pursuant to which ADAs and detective investigators from the District Attorney's office interview arrestees who are detained at the Queens County Central Booking facility, awaiting arraignment on felony charges ( see Matter of Brown v. Blumenfeld, 89 A.D.3d 94, 97, 930 N.Y.S.2d 610). As formal criminal proceedings have not been commenced against these arrestees, who are not represented by counsel and have not requested the assistance of counsel, their indelible rights to counsel have not attached at the time of the interviews ( see People v. Grice, 100 N.Y.2d 318, 320–321, 763 N.Y.S.2d 227, 794 N.E.2d 9;People v. Rivers, 56 N.Y.2d 476, 479, 453 N.Y.S.2d 156, 438 N.E.2d 862;People v. Grimaldi, 52 N.Y.2d 611, 616, 439 N.Y.S.2d 833, 422 N.E.2d 493).

Under the Program, arrestees are brought to an interview room where an ADA reads, or permits a detective investigator to read, a preprinted “Interview Form” (hereinafter the Form) ( see Matter of Brown v. Blumenfeld, 89 A.D.3d at 97, 930 N.Y.S.2d 610). The Form contains a series of statements that precede the reading of Miranda warnings. (The remarks preceding the Miranda warnings will be referred to herein, consistent with Justice Blumenfeld's terminology, as “the preamble.”) Once the Miranda warnings are read, the arrestees are asked whether they are willing to speak with the ADAs and detective investigators, who then proceed to question the individuals upon receiving affirmative responses.

On March 14, 2009, an interview pursuant to the Program was conducted with Elisaul Perez, who later became a defendant in a criminal proceeding entitled People v. Perez. The proceeding stemmed from an incident, occurring on March 13, 2009, in which two men allegedly beat another man (hereinafter the complainant) on a street in Queens. Allegedly, the perpetrators also took the complainant's iPod. Approximately 10 minutes later, at about 12:30 A.M., Perez, who allegedly matched the complainant's description of one of the perpetrators, was stopped by police officers three or four blocks away from the scene of the incident. Perez allegedly had blood on his sneakers. The officers frisked Perez for weapons, and recovered two iPods, one of which had blood on it. When the complainant identified one of the iPods as his, Perez was arrested and later transported to the Queens Central Booking facility.

At 2:35 P.M., Perez was brought to an interview room, pursuant to the Program's procedures. ADA Angela Garg, ADA Louisa DeRose, Detective Investigator Mary Picone, and a Spanish interpreter were present in the interview room. Pursuant to the Program's protocols, Perez was advised of the charges that would be filed against him when he appeared in court that day, and the date, time, and place of the incident underlying the charges. The preamble was then read to Perez (in Spanish) as follows:

“In a few moments I'm going to read you your rights. After that, you will be given an opportunity to explain what happened at that date, time and place.

“If you have an alibi, give us as much information as you can, including the names of any people you were with.

“If your version of the events of that day is different from what we have heard, this is your opportunity to tell us your story.

“If there is something you would like us to investigate concerning this incident, you must tell us now so we can look into it.

“Even if you have already spoken to someone else, you do not have to talk to me.

“This will be the only opportunity you will have to talk to me prior to your arraignment on these charges.”

Perez was told that the entire interview was being recorded on video, was advised of his right to be arraigned without delay, and was read Miranda warnings. He indicated that he understood each warning, and then agreed to talk to the ADAs and the detective investigator. Perez was then questioned about the incident and gave statements concerning his version of the events.

According to Perez, he and the complainant had both attended Newtown High School, and had both been involved in a romantic relationship with the same female student. Perez maintained that on June 6, 2008, he and the complainant had a physical altercation over the female student, during which the complainant had beaten him so badly that he required treatment at Elmhurst Hospital.

On the day of the subject incident, Perez explained, he happened to see the complainant on the street and they got into an argument. Perez asserted that, during the argument, the complainant picked up, or attempted to pick up, a stone with which to hit Perez, and thus, Perez explained, he punched the complainant in the face two or three times, causing the complainant's nose to bleed. Perez recalled that the complainant then ran away. According to Perez, he noticed that the complainant had dropped his iPod, and he picked it up.

Perez was subsequently charged in an indictment with, among other crimes, two counts of robbery in the second degree. Perez thereafter moved, inter alia, to suppress the videotaped statement he had given during the interview conducted pursuant to the Program. He argued that he had not properly been advised of his Miranda rights, that he did not knowingly and intelligently waive those rights, and that the statements were “illegally obtained.”

Justice Blumenfeld held a hearing pursuant to People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 with respect to Perez's suppression motion. At the hearing, the DVD containing Perez's recorded statement was admitted into evidence and played for Justice Blumenfeld. Justice Blumenfeld also heard testimony from, among others, ADA Garg. During that testimony, Justice Blumenfeld pointed out that, before Perez gave his version of the incident to the ADAs and detective investigators, he had essentially been told, “if there's anything that you want to tell us, you must tell us now and we'll investigate it.” Justice Blumenfeld then asked Garg whether there had been “any attempt to verify” Perez's version of the incident. Garg replied that she did not know, as it would be up to the “assigned [ADA]” to do that investigation.

Following the hearing, Justice Blumenfeld informed the People and Perez's counsel that he would be contacting a professor of legal ethics to explore the issue of the propriety of the Program, which Justice Blumenfeld noted had originally been raised by Judicial Hearing Officer Thomas A. Demakos in a different case. Justice Blumenfeld questioned whether any ethical rules were violated during the course of the interview conducted pursuant to the Program, particularly as to the reading of the preamble. Ultimately, Justice Blumenfeld received a report from Professor Ellen Yaroshefsky, in which she opined that “the conduct in the interview” violated certain of the Rules of Professional Conduct ( see22 NYCRR 1200.0).

After giving the parties an opportunity to respond to the report, Justice Blumenfeld rendered an oral decision, as well as a written “interim” order dated August 12, 2010. Justice Blumenfeld expressed concern about the ethical implications to the “[District Attorney's] office,” of making a promise, during an interview pursuant to the Program, to investigate a defendant's version of an incident, and then failing to do so. In this regard, Justice Blumenfeld indicated that such conduct might violate rule 8.4(c) of the Rules of Professional Conduct (22 NYCRR 1200.0), which prohibits a lawyer from “engag [ing] in conduct involving dishonesty, fraud, deceit or misrepresentation” (Rules of Professional Conduct [22 NYCRR 1200.0] rule 8.4 [c]; see former Code of Professional Responsibility DR 1–102[a][4] [former 22 NYCRR 1200.3(a)(4) ] [same]...