In the Matter of Richard A. Brown v. Blumenfeld

Decision Date04 October 2011
Citation2011 N.Y. Slip Op. 07039,930 N.Y.S.2d 610,89 A.D.3d 94
PartiesIn the Matter of Richard A. BROWN, etc., petitioner,v.Joel L. BLUMENFELD, etc., et al., respondents.
CourtNew York Supreme Court — Appellate Division


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, William J. Taylor, Jr., and Holly A. VanderSluis of counsel), for respondent Joel L. Blumenfeld.Thomas M. O'Brien, New York, N.Y., for amicus curiae Legal Aid Society.Green & Willstatter, White Plains, N.Y. (Richard D. Willstatter of counsel) and Mintz & Oppenheim LLP, New York, N.Y. (Marshall A. Mintz of counsel), for amicus curiae New York State Association of Criminal Defense Lawyers (one brief filed).Lawrence J. Fox, New York, N.Y., amicus curiae pro se and for amici curiae Monroe H. Freedman, Bennett L. Gershman, Lissa Griffin, Susan D. Reece Martyn, Abbe L. Smith, and Richard Zitrin.Frankfurt Kurnit Klein & Selz, P.C., New York, N.Y. (Ronald C. Minkoff pro se, Lia N. Brooks, Ellen Brotman pro se, Lawrence J. Fox pro se, Peter Margulies pro se, and J. Richard Supple pro se of counsel), for amici curiae New York County Lawyers Association Ethics Institute, Queens County Bar Association, Bronx Bar Association, CUNY Law School Criminal Defense Clinic, Association of Professional Responsibility Lawyers, Richard Abel, Anthony V. Alfieri, Stacy Caplow, Cassandra Burke–Robertson, Eugene Cerruti, Paula Galowitz, Brandon L. Garrett, Bennett L. Gershman, Mark Godsey, Robert W. Gordon, Bruce A. Green, Lissa Griffin, Monroe H. Freedman, W. William Hodes, Peter A. Joy, Ben Kempinen, Renee Newman Knake, Carol M. Langford, Richard A. Leo, John Leubsdorf, David Luban, Peter Margulies, Bridget McCormack, Gregory S. McNeal, Daniel S. Medwed, James Moliterno, Eleanor Myers, Sharisse O'Carroll, Margaret Raymond, Rebecca Roiphe, Tanina Rostain, Abbe Smith, John A. Strait, Laurel S. Terry, Rodney J. Uphoff, Charles W. Wolfram, Carol L. Ziegler, Ellen Brotman, Susan Brotman, Lawrence J. Fox, Ralph L. Halpern, Harry H. Harkins, Mark I. Harrison, Diane L. Karpman, Hal R. Lieberman, Richard Maltz, Sarah Diane McShea, Ronald C. Minkoff, Sandra S. O'Loughlin, Arden J. Olsen, Seth Rosner, J. Richard Supple, and Richard Zitrin.Schulte Roth & Zabel LLP, New York, N.Y. (Michael E. Swartz, Sami B. Groff, and Katherine L. Scheuerman of counsel), for amicus curiae New York Council of Defense Lawyers.Arthur Eisenberg, New York, N.Y. (John Kenneth White, Taylor Pendergrass, and Christopher Dunn of counsel), for amicus curiae New York Civil Liberties Union.James P. Maxwell, Syracuse, N.Y. (Victoria M. White of counsel), for amicus curiae District Attorneys Association of State of New York.WILLIAM F. MASTRO, J.P., MARK C. DILLON, RUTH C. BALKIN, and ROBERT J. MILLER, JJ.BALKIN, J.

In a criminal action entitled People v. Perez, pending in the Supreme Court, Queens County, under Indictment No. 1202/09, Elisaul Perez was charged with robbery in the first degree and other crimes. Perez moved to suppress certain evidence obtained from him ( see CPL 710.20), and a hearing was ordered; the respondent Joel L. Blumenfeld, an Acting Justice of the Supreme Court,1 conducted the hearing ( see CPL 710. 60). During the course of the proceedings, Justice Blumenfeld expressed concern about the manner in which the People obtained certain evidence against Perez. Specifically, Justice Blumenfeld questioned whether assistant district attorneys (hereinafter ADAs) employed by the petitioner, Richard A. Brown, the District Attorney of Queens County (hereinafter the District Attorney), who interviewed Perez pursuant to the District Attorney's Queens Central Booking Interview Program (hereinafter the Program) violated ethical requirements warranting suppression of a videotaped statement by Perez. In connection with these concerns, Justice Blumenfeld solicited an opinion from an outside ethics expert after receiving memoranda from Perez and the People about these ethical issues. After Justice Blumenfeld received the expert's report, he distributed it to the parties. The People made an application that Justice Blumenfeld strike the report. Justice Blumenfeld denied the application, stating that he would rule upon whether several ADAs violated ethical rules in the course of obtaining Perez's videotaped statement. Justice Blumenfeld has issued an interim ruling on the motion to suppress with respect to most of the evidence Perez sought suppressed, but not with respect to the videotaped statement.

The District Attorney, who represents the People in the criminal action, thereafter commenced this special proceeding pursuant to CPLR article 78 to prohibit Justice Blumenfeld from, among other things, considering the expert's report and ruling upon whether the ADAs violated ethical rules in obtaining Perez's videotaped statement. The District Attorney contends that, in deciding that branch of Perez's omnibus motion which was to suppress the videotaped statement, Justice Blumenfeld is limited to considering whether Perez's videotaped statement was “involuntarily made” (CPL 60.45[1] ), and that a violation of an ethical rule does not in itself constitute a ground for suppression.

The District Attorney advised Justice Blumenfeld of his intent to commence this special proceeding, and Justice Blumenfeld agreed to stay the proceedings in People v. Perez pending this Court's determination.


Shortly after midnight on March 13, 2009, two men allegedly assaulted and robbed a man on a street in Queens County. A few minutes later, the police arrested Perez and, after obtaining an inculpatory written statement from him, eventually took him to the Queens Central Booking (hereinafter QCB) facility in Kew Gardens and placed him in a holding cell. In accordance with the protocols of the Program, which the District Attorney had instituted in 2007, Perez was later taken to a room to meet with two ADAs and a detective investigator (hereinafter DI).

Under the Program, the District Attorney's ADAs and DIs interview individuals awaiting arraignment on felony charges, in a room equipped with visible videotaping equipment. An ADA or DI reads the arrestee a preprinted “Interview Form,” which has been completed to be specific to the arrestee's case. The arrestee is told the date and time, that he or she is “in the interview room of the Queens County District Attorney's office in Central Booking, Queens,” the names of the other people in the room, and their status as ADAs or DIs from the District Attorney's Office. The arrestee is then told that he or she has been charged with certain specified crimes, as well as the dates, times, and locations of those crimes.

The version of the Interview Form in use when Perez was detained at QCB read as follows:

“In a few moments I will be reading you your rights. After that, you will be given an opportunity to explain what you did and what occurred on (date) at (time) at (location), in Queens County.

“If you have an alibi, please 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 differs 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 that 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.

“This entire interview is being recorded with both video and sound.” 2

After being read the foregoing, the arrestee is advised of his or her right to be arraigned without undue delay. The arrestee is then given Miranda warnings ( see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694), and the ADA or DI indicates on the Interview Form the arrestee's response to each of the warnings. The arrestee is then asked if he or she is willing to answer questions.3

In the instant matter, after Perez was read the contents of the Interview Form, he indicated that he understood each of the rights that was read to him and he agreed to answer questions. During the ensuing interview, he made certain inculpatory statements about the incident for which he was arrested.


After the completion of the interview at QCB, Perez was assigned counsel and arraigned on a felony complaint. Eventually, a grand jury returned an indictment charging him with two counts of robbery in the second degree, a class C felony (Penal Law § 160.10[1], [2][a] ), and criminal possession of stolen property in the fifth degree, a class A misdemeanor (Penal Law § 165.40). Perez's attorney filed an omnibus motion seeking various relief, including suppression of the statements he had made to the police and to the ADAs and DI. The Supreme Court (Griffin, J.), ordered that a Huntley hearing ( see People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179; CPL 710.60) be held.

At that suppression hearing, which was held before Justice Blumenfeld, the People introduced evidence that the ADAs who had interviewed Perez at QCB followed the Program procedures. After the parties rested at the hearing, they submitted written memoranda. As relevant here, Perez argued that the Program violated certain Disciplinary Rules, then codified in the Code of Professional Responsibility.4 In their response, the People, also as relevant here, argued that Perez's statement at QCB was voluntarily made, but also that they did not violate those Disciplinary Rules.

Justice Blumenfeld notified the parties that he had sought “advice” (22 NYCRR 100.3[B][6][b] ) on the possible ethical issues implicated by portions of the Interview Form from Professor Ellen Yaroshefsky, who taught...

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10 cases
  • Soares v. State
    • United States
    • New York Supreme Court
    • January 28, 2020 has engaged in professional misconduct. Indeed, trial-level courts often make such findings"26 ( Brown v. Blumenfeld , 89 A.D.3d 94, 102 n. 5, 930 N.Y.S.2d 610 [2d Dept. 2011] ). In other words, while a court or administrative agency may opine on questions of professional misconduc......
  • Brown v. Blumenfeld
    • United States
    • New York Supreme Court — Appellate Division
    • December 19, 2012
    ...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......
  • People v. Perez
    • United States
    • New York Supreme Court
    • April 17, 2012 prevent this court from considering any ethics issue in determining the suppression motion (Matter of Brown v. Blumenfeld, 89 A.D.3d 94, 97, 930 N.Y.S.2d 610 [2d Dept. 2011] ).35 Their petition was denied. This court has previously ruled that Rule 8.4(c) 36 can be a part of the totality ......
  • Whyte v. Nassau Cnty. Dist. Attorney's Office
    • United States
    • New York Supreme Court — Appellate Division
    • May 4, 2016
    ...subject matter or where it exceeds its authorized powers in a proceeding over which it has jurisdiction” (see Matter of Brown v. Blumenfeld, 89 A.D.3d 94, 101, 930 N.Y.S.2d 610 [internal quotation marks omitted]; see Matter of Soares v. Herrick, 20 N.Y.3d 139, 145, 957 N.Y.S.2d 664, 981 N.E......
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