People v. Paperno

• Decision Date: 06 December 1982
• Citation: 90 A.D.2d 168,456 N.Y.S.2d 778
• Parties: The PEOPLE, etc., Respondent, v. Lloyd PAPERNO, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 778

456 N.Y.S.2d 778

90 A.D.2d 168

The PEOPLE, etc., Respondent, v. Lloyd PAPERNO, Appellant.

Supreme Court, Appellate Division Second Department.

Dec. 6, 1982.

Hoffman Pollok & Gasthalter, New York City (John L. Pollok and Edward Gasthalter, New York City, of counsel), for appellant.

Robert M. Morgenthau, Dist. Atty., New York City (Robert M. Pitler and Jerrold L. Neugarten, Asst. Dist. Attys., New York City, of counsel), for respondent.

Before DAMIANI, J.P., and WEINSTEIN, O'CONNOR and BRACKEN, JJ.

DAMIANI, Justice Presiding.

In this case Lloyd Ira Paperno, a former law assistant and Special Referee for the Supreme Court, New York County, was indicted for eight counts of criminal contempt in the first degree in that he allegedly gave evasive, equivocal, conspicuously unbelievable and patently false testimony in three appearances before a Grand Jury investigating allegations of official misconduct in the civil branch of the court where he worked. The facts have been fully aired in the three prior published opinions in this case (People v. Paperno, 98 Misc.2d 99, 413 N.Y.S.2d 975, 77 A.D.2d 137, 432 N.Y.S.2d 499, and 54 N.Y.2d 294, 445 N.Y.S.2d 119, 429 N.E.2d 797). Suffice it to say that after his motion to dismiss the indictment was denied (People v. Paperno, 98 Misc.2d 99, 413 N.Y.S.2d 975, supra ), defendant's case was moved for trial before Judge HAROLD J. ROTHWAX and a jury. The prosecutor was named Anthony Ferrara. Judge ROTHWAX had supervised the Grand Jury before which defendant had been called to testify and Ferrara had been his chief interrogator before that Grand Jury. On the day that the trial was scheduled to commence, defendant moved to recuse Ferrara from trying the case. The basis for that motion, although rather inartfully presented to the court, was twofold. First, it was claimed that since Ferrara had questioned defendant before the Grand Jury, the defense wished to call him as a witness at the trial, and that he should, therefore, be recused under the so-called advocate witness rule. Second, it was argued The defense at the trial was that defendant's answers were not intended to frustrate the Grand Jury inquiry but rather were intended as truthful but circumspect answers which would avoid a prosecution for perjury or contempt. Defendant testified that he feared that Ferrara was out to "get" him and that it was this fear and Ferrara's hostile attitude and demeanor before the Grand Jury which prompted his answers. The petit jury found defendant guilty and he appealed.

in substance, that Ferrara's conduct before the Grand Jury would be a material issue at the trial and that he should be recused under the so-called unsworn witness rule. The trial court denied the motion.

This court reversed the judgment of conviction and ordered a new trial (People v. Paperno, 77 A.D.2d 137, 432 N.Y.S.2d 499, supra ). We concluded that Ferrara's recusal was not required under the advocate-witness rule. At that time no appellate court in this State had as yet undertaken to enunciate a standard for the recusal of prosecutors in criminal cases based upon the unsworn witness problem. Our objective in attempting to formulate such a standard was (1) to preserve to the greatest extent possible the right of the prosecution to choose the attorney who would try the case while (2) preventing a trial prosecutor, who had been involved in the underlying facts but who would not be called as a witness, from injecting his own knowledge of the facts and his credibility into the argument on behalf of his client, the People. We ruled that a prosecutor in a criminal case should be recused where his own conduct would be a material issue at the trial (77 A.D.2d 137, at p. 149, 432 N.Y.S.2d 499, supra ). We reversed this defendant's conviction because Ferrara's conduct in questioning the defendant before the Grand Jury had become the major material issue at the trial and because he had unquestionably injected his own credibility into his argument on behalf of the People.

On appeal to the Court of Appeals, the order of this court was reversed (People v. Paperno, 54 N.Y.2d 294, 445 N.Y.S.2d 119, 429 N.E.2d 797, supra ). Basically the Court of Appeals did not disagree with our conclusion that the determination of whether to recuse a prosecutor on the unsworn witness ground should turn upon whether his prior conduct would be a material issue at the trial. Rather, the court concentrated upon the procedural and evidentiary aspects of the motion to recuse, holding that to obtain such recusal (p. 296, 445 N.Y.S.2d 119, 429 N.E.2d 797) "the defendant, prior to trial, [must make] a significant showing that the prosecutor's prior investigative or prosecutorial conduct will be a material issue at the trial" and that "[w]here no such showing is made, however, a conviction will be reversed only when the defendant demonstrates a substantial likelihood that prejudice resulted from the prosecutor's participation in the trial". The matter was remitted to this court for consideration of the facts in light of the rule enunciated by the Court of Appeals.

For the reasons which follow we hold that Judge ROTHWAX properly denied defendant's pretrial motion to recuse Assistant District Attorney Ferrara. However, since Ferrara's conduct did in fact become the major material issue at the trial because it was the cornerstone upon which the defense was built, the court erred in allowing Ferrara to become an unsworn witness against defendant over the repeated and cogent objections of the defendant's counsel. We hold that defendant was thereby deprived of a fair trial and that his conviction must be reversed and a new trial ordered both as a matter of law under the recusal rule promulgated by the Court of Appeals, and as a matter of discretion in the interest of justice.

THE PRETRIAL MOTION

On the day the trial was scheduled to begin, defendant's counsel, Mr. Arnold Roseman, moved to recuse Ferrara under the provisions of the Code of Professional Responsibility "on the grounds [sic ] there is a reasonable basis I may call him as a witness". This, said Roseman, was because Ferrara was on the team of prosecutors On this appeal, the People have focused on the claim that the recusal motion was untimely because "[defendant's] attorney had been informed two months prior to the scheduled start of his trial that Ferrara would prosecute his case". Defendant argues conversely that his motion, made on the day that the trial was to commence, was timely because his "trial counsel vehemently denied knowledge of Ferrara's role as trial prosecutor until shortly before making the motion". This record clearly presents an unresolved question of fact on the issue of the timeliness of the recusal motion. The existence of that factual dispute was noted by the Court of Appeals (54 N.Y.2d 294, 297, n. 2, 445 N.Y.S.2d 119, 429 N.E.2d 797, supra ). In our view it cannot be resolved on the present record and would require a remittal to Criminal Term for a hearing were it not for the fact that defendant's pretrial motion was defective for another more substantial reason.

who conducted the initial investigation, he filed affidavits for eavesdropping warrants in connection therewith and he presented the case to the Grand Jury and asked 95% of the questions posed to defendant during his appearances. He asserted that Ferrara's activities outside and inside the Grand Jury (including his tone of voice, demeanor, etc.) would be submitted for the evaluation of the petit jury and that for the jury to see Ferrara as a prosecutor at the same time would be prejudicial to defendant's right to a fair trial. Ferrara then countered that "I * * * do not believe that my conduct before the Grand Jury was in any way improper. I thought I was very courteous to his client". Defendant's counsel argued that Ferrara's alter ego, Assistant District Attorney Wilson, would take the stand and testify as to "how nice he [Ferrara] was and how conversational he was before the Grand Jury, and how it is a tea party inside". Ferrara would then sum up to the jury and argue that his conduct was proper.

In its opinion in this case, the Court of Appeals stated in relevant part (p. 302, 445 N.Y.S.2d 119, 429 N.E.2d 797):

"We begin with the proposition that, on a pretrial motion to disqualify the prosecutor, it is incumbent upon the defendant to make an adequate showing that the pretrial activity of the prosecutor will render his participation in the trial unfair. A mere assertion by the defendant that he intends to question some aspect of the prosecutor's conduct is insufficient. Rather, the defendant must demonstrate that there is a significant possibility that the prosecutor's pretrial activity will be a material issue in the case.

"Thus, in an evasive contempt case such as the present one, where the prosecutor's conduct before the Grand Jury is called into question, the defendant must demonstrate on the pretrial motion that such conduct will have a bearing on the substantive issues to be raised at trial. If for example, the defendant makes a substantial and satisfactory showing prior to trial that the attitude and questioning of the prosecutor before the Grand Jury were the cause of his 'evasive' answers, disqualification of the prosecutor will be required. It is not a sufficient basis for recusal, however, to merely claim that the prosecutor observed the defendant giving his testimony, or otherwise observed the circumstances under which testimony was given. In another situation in which this type of problem is likely to arise, where the prosecutor has participated in taking the defendant's confession, the defendant must establish, not simply that the prosecutor observed the defendant's demeanor or the activity of others, but that the prosecutor's own conduct will be relevant to a material issue, such as the voluntariness of the confession (see People v. Arabadjis, 93 Misc 2d 826 )" (emphasis added...