Grievance Comm. for the Tenth Judicial Dist. v. Kurtzrock (In re Kurtzrock)

• Citation: 138 N.Y.S.3d 649,192 A.D.3d 197
• Decision Date: 30 December 2020
• Docket Number: 2019–06381
• Parties: In the MATTER OF Glenn KURTZROCK, admitted as Glenn Ross Kurtzrock, an attorney and counselor-at-law. Grievance Committee for the Tenth Judicial District, petitioner; v. Glenn Kurtzrock, respondent. (Attorney Registration No. 2953354)
• Court: New York Supreme Court Appellate Division

192 A.D.3d 197

138 N.Y.S.3d 649

In the MATTER OF Glenn KURTZROCK, admitted as Glenn Ross Kurtzrock, an attorney and counselor-at-law.Grievance Committee for the Tenth Judicial District, petitioner;

v. Glenn Kurtzrock, respondent.(Attorney Registration No. 2953354)

2019–06381

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

December 30, 2020

Catherine A. Sheridan, Hauppauge, NY, for petitioner.

Long Tuminello, LLP, Bay Shore, N.Y. (David Besso and Michelle Aulivola ), for respondent.

ALAN D. SCHEINKMAN, P.J., WILLIAM F. MASTRO, REINALDO E. RIVERA, MARK C. DILLON, RUTH C. BALKIN, JJ.

OPINION & ORDER

PER CURIAM.

The Grievance Committee for the Tenth Judicial District (hereinafter the petitioner) served the respondent with a verified petition containing three charges of professional misconduct. Following a preliminary conference held on September 12, 2019, and a hearing conducted on November 1, 4, and 6, 2019, the Special Referee filed a report dated February 4, 2020, in which he sustained all three charges. The petitioner now moves to confirm the Special Referee's report and to impose such discipline upon the respondent as the Court deems just and proper. The respondent, by counsel, has not controverted the findings of the Special Referee. He states that he has "taken full responsibility for his failure to properly perform the duty imposed upon him as a prosecutor." However, in view of significant mitigating circumstances presented, the respondent requests that the Court impose discipline in the form of a public censure as an appropriate sanction.

The Petition

The respondent was a Suffolk County Assistant District Attorney (hereinafter ADA) in the homicide bureau under former District Attorney Thomas J. Spota (hereinafter the Suffolk DA's office). The respondent was assigned to prosecute a criminal action, People v. Messiah Booker (Suffolk County Indictment No. 2325A–2015). In October 2015, a Suffolk County grand jury returned an indictment against the defendant, Messiah Booker (hereinafter Booker or the defendant), charging him with murder in the second degree and burglary in the first degree. The indictment also charged three codefendants, namely, Booker's brother, sister, and nephew. The criminal charges arose from events that occurred in the early morning hours of January 27, 2013, when, during the course of a home invasion by armed and masked intruders at a home in Flanders, a male occupant of the house was shot and killed (hereinafter the victim). Booker was identified as the intruder who shot the victim. The allegations of the petition emanate from the respondent's conduct in failing to disclose evidence to defense counsel, including that a different individual, John Doe No. 1, was implicated in the crime.

On December 30, 2015, Booker's defense counsel, Brendan M. Ahern, served and filed a Demand to Produce and Request for a Bill of Particulars. This included both general and specific demands under the Constitution of the State of New York and the U.S. Constitution, seeking information indicating Booker's innocence, information tending to impeach the People's witnesses, and all information known to the government which was favorable to the defense, whether or not technically admissible in court, and which was material to the issues of guilt and/or punishment. Defense counsel specifically cited Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).

On January 29, 2016, the respondent filed a Response to the Demand for Discovery, stating: "It is the People's contention that all discoverable materials ... in the People's possession have been provided" subject to identified exceptions. The respondent also stated that "[t]he People are cognizant of their duty .... [and] are aware of their continuing obligation under Brady to give defendant any exculpatory material in their possession. If and when any such material becomes known to the People, it will be made available to the defendant."

On or about February 10, 2017, defense counsel filed a motion seeking various forms of relief, including a request to compel discovery and the production of Brady / Giglio materials. That motion contained general and specific demands under Brady and Giglio.

On February 24, 2017, the respondent filed his sworn affidavit in opposition asserting, inter alia: "The People have previously submitted discovery on January 29, 2016, as well as turned over additional materials on subsequent dates. The People submit that they have complied with their discovery obligations with the exception of the items noted below." The respondent attached to his affidavit two crime stoppers tips. He did so, not because he believed that he was legally required to do so, but because it was office policy to do so. The caller in the first tip stated, in sum and substance, that Booker was the shooter and that the intended target was a female occupant of the home (hereinafter Jane Doe No. 1) because she was holding on to the proceeds of a burglary that her boyfriend had committed on Doctor's Path, in Riverhead. The caller in the second tip stated, in sum and substance, that another person, John Doe No. 2, fit the description of the person who killed the victim, that an additional person, John Doe No. 3, may have been with him, that John Doe No. 3 may have committed home invasions in the past, and they were part of a gang.

On March 28, 2017, in response to the respondent's application under People Molineux, 168 N.Y. 264, 61 N.E. 286 (1901) and People v. Ventimiglia, 52 N.Y.2d 350, 438 N.Y.S.2d 261, 420 N.E.2d 59 (1981), the defense filed another Brady demand seeking disclosure of information derived from a video about a 2012 shooting that was, according to the People's theory of the case, committed with the same gun that was used in the shooting death of the victim.

On March 30, 2017, the respondent responded to the defense's allegations of Brady violations. The respondent argued that the information about the gun was not useful to the defense, was not exculpatory, and even if the court found it to be Brady material, there was no prejudice to the defendant. The respondent supplemented his response by disclosing additional information and documents related to the 2012 shooting carried out with the same gun used to kill the victim.

On April 14, 2017, the respondent submitted Rosario material to the defense (see People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881 [1961] ).

The trial testimony in the Booker case started on April 25, 2017, and continued for seven days through May 3, 2017. The proof against the defendant included the testimony of Jane Doe No. 1, who was in the Flanders home, hiding in a closet, during the murder. She had recognized Booker's voice and immediately identified him to the police. According to Jane Doe No. 1, after hearing a gunshot, she heard Booker say "[John Doe No. 1], that's not part of the plan, what the f–––? Let's go [John Doe No. 1]." Phone records indicated that Booker was present at the time and location of the murder, and that numerous telephone calls were made between telephones belonging to Booker and the codefendants. Two of Booker's accomplices testified against him and identified him as the shooter. Specifically, Booker's former girlfriend testified that she drove Booker to the location and that he admitted to her that he shot the victim. Booker's brother, who was also a codefendant, testified that he was present and an accomplice during the murder and that he witnessed Booker shoot the victim. Both of these witnesses testified that three individuals went inside the Flanders home—Booker, his brother, and his nephew. No forensic evidence connected Booker to the murder.

On the morning of May 3, 2017, the People planned on calling their last witness to the stand, Detective Brendan O'Hara. He was employed by the Suffolk County Police Department, the Homicide Section, and was the lead detective in the Booker case. Just before Detective O'Hara's testimony, defense counsel privately raised with the respondent the subject of Detective O'Hara's "memo book" (or notebook). Defense counsel detected a two-year gap in Detective O'Hara's notebook and inquired whether the detective had conducted any investigation during that period. The respondent informed defense counsel that Detective O'Hara did not cease the investigation during the two-year time frame and "had done other stuff in the meantime" but "it's not Rosario " because the respondent was not going to ask Detective O'Hara about any of the omitted material. At the request of counsel, the trial court convened an off-the-record conference in chambers. The trial court disagreed with the respondent and ordered him to produce the materials. The respondent turned over "the whole book" subject to a protective order. Detective O'Hara had three memo books.

The trial court allowed the respondent to conduct the People's direct examination of Detective O'Hara, and suggested that over the lunch break, defense counsel could carefully review the materials. After the lunch break, defense counsel determined there were more materials he believed should have been turned over including "longform" or "long page" notes attributed to "AR"—Detective Angel Rivera. Defense counsel asserted to the trial court that some of the "most egregious ... of the materials that were extracted ... involve[d] the implication of another person admitting to being the shooter." The trial court directed the respondent "to turn them all over." The respondent turned over Detective Rivera's materials to the defense. When reviewing Detective Rivera's materials, the respondent claims to have discovered nine pages of notes from the interview with Jane Doe No. 1, which the respondent said he had never seen before.

On May 4, 2017, the respondent turned over the entire contents of the police investigative file.

On May 9, 2017,...