People v. Hunte

• Decision Date: 14 December 1995
• Citation: 168 Misc.2d 466,637 N.Y.S.2d 996
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Grantley HUNTE, Garth Robinson and Sheryl Dowling, Defendants.
• Court: New York Supreme Court

Page 996

637 N.Y.S.2d 996

168 Misc.2d 466

The PEOPLE of the State of New York, Plaintiff, v. Grantley HUNTE, Garth Robinson and Sheryl Dowling, Defendants.

Supreme Court, New York County.

Dec. 14, 1995.

Maria S. Tobia, New York City, for Grantley Hunte, defendant.

Lofton P. Holder, New York City, for Garth Robinson, defendant.

Donald R. Schecter, Kew Gardens, for Sheryl Dowling, defendant.

Robert M. Morgenthau, District Attorney of New York County (Michael Kitsis, Veronica Bindrim-MacDevitt and Patrick Maloney, New York City, of counsel), for plaintiff.

COLLEEN McMAHON, Justice. ¹

In this rare prosecution under New York's Enterprise Corruption, or "Little RICO," statute, a key cooperating witness has asserted attorney-client privilege to avoid answering questions that are highly relevant to establishing his motive to falsify his testimony. For the reasons stated below, I hold that the defendants' Sixth Amendment right of confrontation would be impaired if the witness were permitted to invoke the privilege, and I order him to answer questions about his awareness of the penalties he faced if he did not sign a cooperation agreement and testify favorably for the People.

BACKGROUND

This is the second trial under Indictment No. 1430/93, which charges eight former officers and employees of Oxford Capital Securities, Inc. with Enterprise Corruption, P.L. § 460.20, scheme to defraud, P.L. § 190.65, grand larceny (by false promise), P.L. § 155.35, and violations of the Martin Act, G.B.L. § 352-c. The three defendants who are currently on trial are described in the indictment as being on the third or lowest tier of the Oxford operation; accordingly, their trial was severed from that of more senior executives. The first and second tier defendants were tried last year before another judge. All were convicted of multiple felonies, including Enterprise Corruption.

A key witness at both trials was Leonard Donner, another former Oxford employee, who had previously pleaded guilty to a Martin Act violation (a Class E felony) and two misdemeanor tax counts. ² As a result of his plea, Donner faces a maximum sentence of 1 1/4 to 4 years.

Donner's situation would have been far more parlous had he not won the race to the District Attorney's office. He has confessed to stealing $4.8 million dollars from his former clients, in many instances inducing elderly people and close personal friends to deplete their hard-earned (and modest) life's savings by misleading them about the nature of the "investment" they were making. He was also close to the seat of power at Oxford. He worked in the same room as the firm's founder and criminal mastermind, Samuel Forson, and his closest associates, where he helped run the Ponzi scheme that Oxford allegedly became. If the three third-tier defendants were convicted of all the counts they face (and, at this moment they are presumed innocent of every accusation), they would be guilty of but a fraction of Donner's admitted misdeeds.

At the trial, co-defendants' defense counsel attempted to question Donner about his awareness of the penalties he would have faced had he been indicted, tried and convicted of his many crimes. Had Donner admitted that he knew he was looking at a possible sentence of 8 1/3 to 25 years, the defendants would have argued that Donner had a powerful motive to invent a story that implicated them.

If Donner knew about the serious punishment he faced, it was most likely because his attorney had explained his options as part of his evaluation of whether to accept the People's plea offer. Thus, the parties at the first trial anticipated that Donner might invoke his attorney-client privilege in response to this line of questioning. The judge permitted defense counsel to ask whether Donner knew from any source how much time he would have faced if he had not become a cooperator--a background question that, at least arguably, would not have invaded the privilege. See e.g., United States v. O'Malley, 786 F.2d 786, 794 (7th Cir.1986); McCormick, Evidence § 93 (2d ed. 1972); 8 Wigmore I cannot avoid the question because Donner did not reply to the same question in the same way at the trial of the third-tier defendants. Instead of "No, I did not know from any source what my punishment could be," he said, "It was discussed between my lawyer and I. It's lawyer client privilege" (Minutes of November 14, page 1293). We are now in the position that counsel anticipated in the first trial; since Donner has asserted his privilege and declined to specify what he knew, defendants cannot make their point that Donner had a motive to falsify his testimony.

Evidence, § 2327 (McNaughton rev. ed. 1961); Cf., People v. Glenn, 52 N.Y.2d 880, 881, 437 N.Y.S.2d 298, 418 N.E.2d 1316 (1981) (error for prosecutor to ask defendant who was asserting a justification defense, "not only as to whether he had conferred with his attorney about the case but as well as to the subject matter of their conversation, viz. the law of self-defense"). Donner replied that he did not know from any source what his punishment could have been. Donner's emphatic (if incredible) denial enabled the first judge to avoid the thorny question that now faces me--namely, whether Donner's attorney-client privilege can be invaded.

Defendant Hunte, joined by his co-defendants, has moved to compel Donner to answer the question about how much time he faced, regardless of the source of his knowledge. Defendant Robinson, joined by Defendant Hunte (but not Defendant Dowling) has moved to strike Donner's entire direct testimony if the invocation of his attorney-client privilege prevents questioning on this subject. They urge that Donner be ordered to respond to questions about what he knew, even if the source of the information was his lawyer. They also argue that Donner has waived his privilege by taking the stand as a cooperating witness.

OPINION

The attorney-client privilege is codified in C.P.L.R. § 4503, which provides that a client shall not be compelled to disclose a confidential communication made between client and attorney. See also Fisch On New York Evidence, § 518. The privilege protects both client communications to their attorneys and communications from the attorney to the client which include legal advice or reflect information provided by the client in confidence. Rossi v. Blue Cross, 73 N.Y.2d 588, 592, 542 N.Y.S.2d 508, 540 N.E.2d 703 (1989). Here, Donner's knowledge about the jail time he faced if he did not enter into a cooperation agreement came from discussions with counsel regarding the advisability of his pleading guilty and becoming a cooperator. Thus, Donner learned whatever he knows in a confidential communication protected by the attorney-client privilege.

A. Has Donner Waived His Privilege?

Defendants' contention that Donner waived his attorney-client privilege by becoming a cooperator was rejected long ago by our Court of Appeals in People v. Lynch, 23 N.Y.2d 262, 271, 296 N.Y.S.2d 327, 244 N.E.2d 29 (1968), where the Court said,

... [T]estimony about an event, even when the witness is protected by immunity, should not be construed as a waiver of the privilege, merely because the subject matter of the testimony may also have been discussed in the privileged communication.

Donner also did not waive his privilege at the entry of either of his pleas. Although Donner told the presiding judge at his arraignments that he had discussed his plea with his attorney, he was not asked any specific question about the contents of that conversation.

Finally, Donner did not waive his privilege during his testimony at the 1994 trial. Clearly, he did not do so deliberately; the transcript is replete with references to Donner's assertion of his privilege. Nor did he do so by inadvertence. The clearest statement of the issues to be addressed in deciding whether the attorney-client privilege has been waived inadvertently is still found in Hearn v. Rhay, 68 F.R.D. 574, 581 (E.D.Wash., 1975), where the court identified three components of an inadvertent waiver of privilege:

First, the situation that results in assertion of the privilege is the result of some affirmative act by the asserting party Second, through this affirmative act, the party asserting the privilege puts the protected information at issue by making it relevant to the case; and

Third, application of the privilege would deny the opposing party access to information that is vital to its case.

Applying these rules to Donner's testimony at the last trial, there was no inadvertent waiver. It cannot be said that a witness who was testifying under compulsion, pursuant to a cooperation agreement, did something affirmative to put the protected information (i.e., his knowledge, gleaned from his lawyer, of the magnitude of his possible punishment) in issue. This is not a case where a plaintiff puts the advice of counsel in issue by bringing a lawsuit, see Meyerhofer v. Empire Fire and Marine Insurance Co., 497 F.2d 1190, 1194-95 (2d Cir.1974); Bennett v. Oot Assocs., 162 Misc.2d 160, 162, 616 N.Y.S.2d 163 (Sup.Ct.Tompkins Co.1994), or where a defendant asserts an advice of counsel defense but refuses to reveal what counsel's advice was. See Orco Bank, N.V., v. Proteinas Del Pacifico, S.A., 179 A.D.2d 390, 577 N.Y.S.2d 841 (1st Dept.1992); SEC v. Forma, 117 F.R.D. 516, 523 (S.D.N.Y.1987). In such cases, the issue of what the lawyer said is clearly injected into the proceeding by the affirmative act of the person who is asserting the privilege. Thus, the familiar rule that one cannot use the privilege as a shield while relying on the advice of counsel as a sword governs. But to say that a compelled witness (even one who came under compulsion by voluntarily signing a plea agreement) injects the issue of his attorney's advice into a proceeding simply by taking the stand makes no sense.

B. Is Donner's Privilege Overridden by Some Compelling Public Policy...