People v. Mero
| Decision Date | 06 March 2020 |
| Docket Number | Index # DA 140-17 |
| Citation | 2020 NY Slip Op 30669 (U) |
| Parties | THE PEOPLE OF THE STATE OF NEW YORK v. EDWARD MERO, Defendant. |
| Court | New York Supreme Court |
For the People:
HONORABLE P. DAVID SOARES
Albany County District Attorney
Albany County Judicial Center
Albany, New York 12207
VINCENT STARK
Assistant District Attorney
COLIN D'ARCY
Assistant District Attorney
For the Defendant:
HUGLAW, PLLC
Attn: MATTHEW C. HUG, ESQ.
-and -
TREY SMITH, ESQ.
21 Everett Road Extension
Following a jury trial, on December 19, 2017, the jury found the defendant guilty of two (2) counts of Murder in the Second Degree, in violation of Penal Law Section 125.25 (1), a Class A-1 violent felony, and two (2) counts of Tampering with Physical Evidence, in violation of Penal Law Section 215.40 (2), a Class E felony1. On February 13, 2018, this Court sentenced defendant to an aggregate indeterminate sentence with a maximum term of Life and aminimum term of 50 years. The case was prosecuted by David Rossi, Chief Assistant District Attorney and Steven Sharp, then an Assistant District Attorney2. Cheryl Coleman, Esq. served as trial counsel for the defendant.
By written motion dated December 27, 2019, Defendant moved for an Order pursuant to CPL § 440.10 (1)(b), (f). and (h) to vacate his previous convictions. The essential ground for the motion to vacate is that he was deprived of his constitutional right to effective assistance of counsel and fundamental due process rights. Defendant has also raised a conflict of interest issue claim, arising out of the undisclosed business relationship between attorney Coleman and ADA Sharp, in which Sharp prepared draft appeals in criminal cases arising outside of Albany County during the period 2014-2018, encompassing the pendency of the Mero case (hereinafter the "Coleman/Sharp business relationship" or "business"). Defendant claims that undisclosed business undermined the integrity of the underlying trial, necessitating reversal.
On January 20, 2020, the Court granted a hearing on the 440 motion. The hearing took place on February 21, 26, and 27, 2020.
David Soares testified that he has served as Albany County District Attorney from January 1, 2005 to date. He also served as president of the District Attorney's Association from 2018-2019. DA Soares hired Steven Sharp as an Assistant District Attorney in 2009. He never spoke to ADA Sharp about the Mero case.
DA Soares testified that he is responsible to make and implement office policy. He also testified as follows:
DA Soares testified that there is an unwritten policy prohibiting ADA's from performing criminal defense work (hereinafter referred to as "unwritten policy"). He agreed that a violation of that prohibition creates an appearance of impropriety. DA Soares acknowledged he never advised ADA Sharp about the policy. He also acknowledged he did not have any record to substantiate he ever communicated the terms of the unwritten policy to any individual prosecutor.
On June 20, 2018, when ADA Horn advised him about the Coleman/Sharp business relationship. DA Soares testified that he was "shocked". DA Soares allowed ADA Sharp to continue to work until he elected to suspend him with pay on August 7, 2018. He accepted ADA Sharp's resignation on August 15, 2018.
DA Soares acknowledged he had previously issued an office ethics policy which created a misconduct review board. The office policy provided: "every allegation of prosecutorial misconduct...shall be reviewed by the board" (emphasis added). DA Soares testified that he did not to refer the subject misconduct issue to the review board, because he opted to review the Sharp/Coleman matter himself, along with Special Counsel Christopher Horn and Chief Assistant DA David Rossi.
Attorney Coleman testified at the hearing as follows. She acknowledged that ADA Sharphad prepared draft appellate briefs for her in four cases during the period 2014-2018. She paid him approximately $20,000.00. She she did not disclose the business relationship to anyone. She claimed that DA Soares did not like her and felt he would fire ADA Sharp if he found out he was working for her. She admitted she did not advise this Court about the business relationship and opined that she did not have any ethical obligation to do so. In fact, she characterized attorney Hug's request that she disclose the business to the Court as "extortion" and labeled him a "weasel" because he was exposing ADA Sharp to being fired.
Attorney Coleman testified that she met with Defendant Mero at the Albany County Jail and told him that ADA Sharp had done some appellate work for her and observed him smile in response. She then assured Mero that there wouldn't be advantage from the relationship. When asked if she told Mero that ADA Sharp was currently doing work for her, she testified that she didn't know. When asked if she told defendant that she was obligated to disclose the business relationship to the Court, she replied, no. Defendant Mero testified that attorney Coleman did not advise him about her business relationship with ADA Sharp.
Attorney Coleman was questioned about an incident that took place in the lobby of the courthouse during the trial (evening of December 11, 2017). She testified as follows: (emphasis added) That testimony is in direct conflict with the following colloquy between the Court and Ms. Coleman that took place on the morning of December 12, 2017, to wit:
Attorney Coleman testified that the so-called lobby discussion was an acceptable example of a trial attorney merely blowing off steam. Attorney Coleman testified that she was unaware that the juror was present during the lobby discussion, and once she realized the juror was in the lobby, she self-reported the event to the Court.
Defendant's counsel asked a series of questions concerning Ms. Coleman's alleged failure to follow witness leads, and alleged failure to call defendant's father, Douglas Mero as a trial witness. In a nutshell, Ms. Coleman had called one Anthony Greco as a trial witness (Exhibit A, pp. 1,451-1,464). Mr. Greco testified that on January 26, 2013 (the night of the fire) he was at his friend Megan Cunningham's home and that he left by 1:00 a.m. on January 27, 2013 (Exhibit "A" p. 1,454). He did not see the defendant (Exhibit "A" p. 1,462). At the hearing, defense counsel asked attorney Coleman why she failed to follow up on a lead that Greco had told the police he left at 3:00 a.m., and that Ms. Cunningham had texted a friend advising that Greco left her apartment at 3:15 a.m. That line of questioning was made in conjunction with the defense proffer that defendant's father, Douglas, could have testified he heard the alarm at his house at 3:00 a.m. and defendant was in his home at that time. Ms. Coleman responded that her decision not to challenge Greco, nor call Doug Mero as a trial witness, was a strategic decision. The defense also questioned Ms. Coleman about the alleged failure to investigate a claim that a Trooper had asked Chief P.J. McKenna if he was sure he had the right guy. Ms. Coleman responded that query rose to the level of opinion, not relevant facts3.
Cecelia Walsh is the public information officer for the Albany County District Attorney'soffice. She testified about the receipt of media inquiries about the Coleman/Sharp business relationship, and her responses thereto.
ADA Christopher Horn is special counsel to the DA. He testified that he told ADA Sharp that the DA's office policy prohibited the conduct of criminal defense work outside of the office. He also testified that such policy was very well known. He testified that on June 20, 2018, ADA Sharp advised him about the Coleman/Sharp business relationship, and he immediately reported same to DA Soares. ADA Horn testified he had no knowledge of the Coleman/Sharp business relationship before June 20, 2018.
Former ADA Sharp testified that he did prepare four (4) appellate draft briefs for Ms. Coleman and was paid $20,500.00 for the work. He testified he performed the work after hours, and that he had no access to attorney Coleman's office or files. He acknowledged engaging in 12 telephone calls with attorney Coleman during the trial period, albeit could not recall the substance of the calls. He completed his last job in January 2018 when he finished the draft brief in People v. West, 166 A.D. 3d 1080 [3d Dept. 2018].
ADA Sharp testified "there was no rule or policy in place in the DA's office" that would preclude such work. He testified that neither DA Soares, ADA Horn, ADA Rossi nor anyone else ever told him about any such policy or rule. He also testified that "if there was a rule in place, I would not have done it". He noted that it was well known that another assistant district attorney maintained an open law practice outside of DA work4. ADA Sharp testified he did not disclose the outside work for he knows that DA Soares doesn't like Attorney Coleman.
ADA Rossi testified that he, too, was surprised when he first heard of the Coleman/Sharpbusiness relationship. He did not know anything about it until June 20, 2018 when ADA Horn called him to advise. He testified that it was "self-evident" and "understood" that no...
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