People v. Munoz, SANCHEZ-MEDIN

• Decision Date: 06 February 1990
• Docket Number: D,SANCHEZ-MEDIN
• Citation: 550 N.Y.S.2d 691,153 A.D.2d 281
• Parties: The PEOPLE of the State of New York, Respondent, v. David MUNOZ, Defendant-Appellant. The PEOPLE of the State of New York, Respondent, v. Elmerefendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 691

550 N.Y.S.2d 691

153 A.D.2d 281

The PEOPLE of the State of New York, Respondent, v. David MUNOZ, Defendant-Appellant.

The PEOPLE of the State of New York, Respondent, v. Elmer SANCHEZ-MEDINA, Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

Feb. 6, 1990.

Steven D. Ateshoglou, New York City, for defendant-appellant munoz.

Andrea Hirsch, of counsel (Philip L. Weinstein, New York City, attorney), for defendant-appellant Sanchez-Medina.

Deirdre Roney, of counsel (Mark Dwyer, with her on the brief; Robert M. Morgenthau, New York City, attorney), for respondent.

Before MURPHY, P.J., and SULLIVAN, CARRO, MILONAS and SMITH, JJ.

CARRO, Justice.

On this appeal, we are presented with a troubling question: whether a reversal is mandated where the Assistant District Attorney who presented the case to the Grand Jury was not admitted to the practice of law, resulting in the presence of an unauthorized person during the Grand Jury proceedings, thereby rendering the indictment defective. The related question of whether defendants' due process rights were violated where the prosecuting attorney at trial was not admitted to practice is also presented.

The People and defendants have stipulated that the Assistant District Attorney, one Daniel J. Penofsky, was never admitted to the bar during the 16 years he prosecuted cases. While Penofsky is a law school graduate, he either never sat for or never passed the New York State Bar examination. Neither did Penofsky ever submit documentation to the Character Committee of this, or any other, Judicial Department, in an effort to be admitted upon waiver of the bar examination due to reciprocity with another State.

Regardless of the fact that he was not an admitted attorney, Penofsky practiced law for 16 years; for three years he was an Assistant District Attorney in Kings County, followed by some twelve to thirteen years as an Assistant District Attorney under the Special Narcotics Prosecutor, Sterling Johnson. During Penofsky's tenure with that office, he represented the People before the Special Narcotics Grand Jury which returned the indictment against the appellants herein, and subsequently tried the case. In March 1989, Penofsky was fired, after an unrelated investigation confirmed allegations that Penofsky was not an admitted attorney.

Defendants argue that because Penofsky was not admitted to the bar when he presented the case to the Grand Jury, his presence constituted that of an unauthorized person during the Grand Jury proceedings, thereby impairing its integrity and possibly resulting in prejudice to defendants; they further argue that the indictment voted and filed after Penofsky's presentation is, as a matter of law, defective.

There is no question that "presentation to a Grand Jury by one who has no jurisdiction over the subject matter so impairs the integrity of the Grand Jury as to require dismissal of the indictment." People v. Dunbar, 53 N.Y.2d 868, 871, 440 N.Y.S.2d 613, 423 N.E.2d 36 (1981), citing, People v. DiFalco, 44 N.Y.2d 482, 406 N.Y.S.2d 279, 377 N.E.2d 732 (1978). Thus, a Special Prosecutor, whose grant of authority was expressly limited to cases dealing with corruption in the criminal justice process is not authorized to appear before the Grand Jury [DiFalco, supra, 44 N.Y.2d at 485, 488, 406 N.Y.S.2d 279, 377 N.E.2d 732], nor is a regional attorney for the Department of Environmental Conservation [ (People v. Beauvais, 98 A.D.2d 897, 898, 470 N.Y.S.2d 887 (3rd Dept.1983) ].

Here, however, Penofsky was appointed and employed by the office of the District Attorney, which does have jurisdiction to appear before the Grand Jury CPL § 190.25(3)(a); People v. DiFalco, supra, 44 N.Y.2d at 486-487, 406 N.Y.S.2d 279, 377 N.E.2d 732. This authority is extended to Assistant District Attorneys as appointees of the District Attorney. See, People v. Dunbar, supra, 53 N.Y.2d at 871, 440 N.Y.S.2d 613, 423 N.E.2d 36; CPL § 1.20(32); see also, People v. Raymond Garret, Index No. 3689/89 (Sup.Ct.N.Y.Co., August 14, 1989) (Bell, J.) (Assistant District Attorney, a lawyer who was awaiting admission, was determined not to be an unauthorized person at the time she presented case to Grand Jury); cf. People v. Beauvais, supra, 98 A.D.2d at 898, 470 N.Y.S.2d 887. We further note that no statute expressly forbids the presence of an unadmitted Assistant District Attorney in the Grand Jury. Compare, Judiciary Law § 478(2), (3) (authorizing the practice of law for certain law school graduates who are not admitted to the bar).

While we do not condone the practice of allowing unadmitted lawyers to present cases to the Grand Jury, we do not believe that Penofsky's presentation herein per se impaired the integrity of the proceedings, causing a risk of prejudice to defendants. CPL § 210.35(5). Defendants raise no claim of error or prejudice with regard to the Grand Jury proceedings aside from that regarding Penofsky's status as an unadmitted lawyer. See also, People v. Wilson, 77 A.D.2d 713, 430 N.Y.S.2d 715 (3rd Dept.1980); People v. 80 Main Street Theatre Corp., 88 Misc.2d 471, 472, 388 N.Y.S.2d 543 (Co.Ct. Nassau Co.1976). See Generally, Bank of Nova Scotia v. U.S., 487 U.S. 250, 108 S.Ct. 2369, 101 L.Ed.2d 228 (1988).

While we decline to hold that the Grand Jury proceedings herein were defective, were we to have held otherwise, the remedy for presentation by an unauthorized prosecutor would have been re-presentation by the District Attorney's Office, specifically by a duly admitted Assistant District Attorney. People v. DiFalco, supra, 44 N.Y.2d at 488, 406 N.Y.S.2d 279, 377 N.E.2d 732.

Neither are we convinced that the convictions herein should be reversed and a new trial ordered because defendants were tried by a lawyer who was not admitted to the bar. There is currently no rule in New York to the effect that prosecution by an unadmitted lawyer entitles a defendant to an automatic reversal. Cf. People v. Felder, 47 N.Y.2d 287, 291, 418 N.Y.S.2d 295, 391 N.E.2d 1274 (1979) (holding that "where a defendant in a criminal proceeding has unwittingly been represented by a layman masquerading as an attorney but in fact not licensed to practice law, his conviction must be set aside without regard to whether he was individually prejudiced by such representation." We detect no prejudice to defendants in the proceedings herein; moreover, any prejudice stemming from Penofsky's lack of admission would impact upon the People, rather than defendants. Cf. People v. Felder, supra; compare, People v. Charles F., 60 N.Y.2d 474, 477, 470 N.Y.S.2d 342, 458 N.E.2d 801 (1983) cert. denied, 467 U.S. 1216, 104 S.Ct. 2660, 81 L.Ed.2d 367 (1984) (holding that while a defendant is constitutionally entitled to receive a fundamentally fair trial, "the mere allegation that a judge lacks legal training does not mandate removal").

This Court in no way wishes to minimize the egregious nature of Penofsky's conduct. We are shocked and dismayed that an individual acting under the auspices of the District Attorney's Office, prosecuting alleged criminals, should, himself, have violated the public trust invested in him by essentially perpetrating a...