People v. Arabadjis

Decision Date21 March 1978
Citation403 N.Y.S.2d 674,93 Misc.2d 826
PartiesThe PEOPLE of the State of New York v. George ARABADJIS, Defendant.
CourtNew York Supreme Court
MEMORANDUM

BURTON B. ROBERTS, Justice.

This defendant has moved this Court to recuse the Assistant District Attorney assigned to the prosecution of this case. The defendant claims that he is entitled to this relief because the Assistant District Attorney questioned the defendant following his arrest and she intends to introduce the stenographic record of that interrogation into evidence. Indeed, the defenda contends that he is considering calling her as a witness for the defendant at trial.

Before dealing with the legal issues raised by the defendant's motion it would be helpful to briefly state the events preceding and leading up to this motion.

Early on the morning of April 13, 1977 a young taxidriver, Richard Kornblatt, was shot and killed in his cab on East 35th Street in Manhattan. Two men were seen running from the cab moments after the shooting. One of them discarded a gun as he ran. A gun was recovered by police near the scene of the shooting.

The following day, acting on a tip, detectives assigned to the case spoke to two men. These two men stated that the defendant had admitted to them that he and a Ronald Ruocchio had been involved in the shooting of a cab-driver in Manhattan.

At 10:00 P.M. on April 13th, the police took the defendant into custody and brought him down to the First Homicide Zone office. There, the defendant was advised of his constitutional rights by Detective Dominick Scarcella and agreed to discuss the case.

The defendant then made admissions that substantially amounted to a confession of felony murder having participated in the attempted robbery of the taxi-driver Richard Kornblatt, who was shot during the course of the attempted robbery.

This statement was reduced to writing by Detective Scarcella and then signed by the defendant.

Detective Scarcella then called the New York County District Attorney's office. In response, Assistant District Attorney DeGrazia went to the First Homicide Zone office where the defendant was being held.

Although Ms. DeGrazia arrived at the police station shortly before 1:00 A.M. on April 14, 1977, she did not question the defendant until sometime shortly after 3:00 A.M. when a stenographer from the District Attorney's office finally arrived.

At that time the assistant district attorney spoke to the defendant. She fully advised the defendant of his constitutional rights. The defendant again stated that he understood his rights and that he wished to discuss the killing of the cab-driver.

The defendant then gave the assistant district attorney substantially the same inculpatory statement that he had previously given to Detective Scarcella. This statement to Assistant District Attorney DeGrazia was recorded stenographically.

A "Huntley " hearing was held and the motion to suppress these statements was denied. At the Huntley hearing, the prosecutor was called as a defense witness.

The defense attorney has indicated that he may again seek to call the prosecutor as a witness on behalf of the defendant.

The following legal issues are thus raised for the Court's consideration:

1. Does the fact that a prosecutor takes a statement from a defendant automatically disqualify him from trying a case by that very fact?

2. Does the fact that a prosecutor may be called as a witness automatically disqualify him from trying the case?

a) Does it matter for which side the prosecutor testifies?

b) What ethical considerations are involved in calling an adverse party's attorney as a witness?

Under the Code of Professional Responsibility as promulgated by the American Bar Association and adopted by the New York State Bar Association if ". . . a lawyer learns or it is obvious that he ought to be called as a witness on behalf of his client, he shall withdraw from the conduct of the trial . . ." Canon 5, Disciplinary Rule 5-102(A).

This particular rule is addressed to the obvious ethical problem of an attorney who not only acts as an advocate for a client, but also as a witness for the client. In a Civil case the advocate witness because of his obvious stake in the outcome is less likely to appear truthful. This conduct therefore would tend to lessen respect for the profession. In a criminal case, there is yet another problem. That is the possibility of prejudice to the defendant because a juror may be more inclined to believe the prosecutor/witness as a result of his status as a quasi-judicial officer. See, Erwin Jennings Co. v. DiGenova, 107 Conn. 491, 498-499, 141 A. 866, 868 (1928).

Thus, if a prosecutor knows or thinks that he may be called as a witness for the People, he should sua sponte, disqualify himself from conducting the trial of the case. 1

In the instant case the prosecutor states that she does not intend to be called as a witness on behalf of the People, but defense counsel indicates that he may call her as a defense witness. Only a few courts have dealt with the propriety of a defense attorney calling opposing counsel as a witness and then moving to disqualify that counsel. Note 31 to Canon 5 of the Code of Professional Responsibility, citing Galarowicz v. Ward, 119 Utah 611, 620, 230 P.2d 576, 580 (1951), states inter alia, "(Canon 5) . . . was not designed to permit a lawyer to call opposing counsel as a witness and thereby disqualify him as counsel." And as the Supreme Court of Utah noted, "(t)here surely should be no great harm in a lawyer knowing something about the subject matter of the lawsuit or concerning which he is questioning a witness."

Similarly, in In Re Mehler's Estate, 57 Misc.2d 122, 291 N.Y.S.2d 546 (1968), the Court, in denying an application to have counsel...

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11 cases
  • State v. Reeves, 81-706
    • United States
    • Nebraska Supreme Court
    • January 20, 1984
    ...625 P.2d 44 (1981). However, the general rule does not apply when the defense calls the prosecutor as a witness. People v. Arabadjis, 93 Misc.2d 826, 403 N.Y.S.2d 674 (1978); see, generally, Annot., 54 A.L.R.3d 100 The record in this case supports the trial court's determination that it was......
  • State v. Smith
    • United States
    • Hawaii Supreme Court
    • September 13, 1978
    ...39 Haw. 296 (1952); Bonacon v. Wax, 37 Haw. 57, Reh. den. 37 Haw. 106 (1945); State v. Gagnon, 383 A.2d 25 (Me.1978); People v. Arabadjis, 403 N.Y.S.2d 674 (Sup.1978); State v. Ward, 172 Conn. 163, 374 A.2d 168 State v. Lee, 87 Wash.2d 932, 558 P.2d 236 (1976). Our laws give a criminal defe......
  • State v. Doran
    • United States
    • Court of Appeals of New Mexico
    • December 11, 1986
    ...People v. Cannon, 25 Ill.App.3d 737, 323 N.E.2d 846 (1975); State v. Reeves, 216 Neb. 206, 344 N.W.2d 433 (1984); People v. Arabadjis, 93 Misc.2d 826, 403 N.Y.S.2d 674 (1978); State v. Browning, 666 S.W.2d 80 The trial court has broad discretion in determining whether the defense will be al......
  • State v. Mercer
    • United States
    • Montana Supreme Court
    • March 4, 1981
    ...1. But that rule of automatic disqualification does not apply when the defense calls the prosecutor as a witness. People v. Arabadjis (1978), 93 Misc.2d 826, 403 N.Y.S.2d 674; Galarowicz v. Ward (1951), 119 Utah 611, 620, 230 P.2d 576, 580; Chessman v. Teets, supra. Here, it was the defense......
  • Request a trial to view additional results

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