People v. Paperno

• Decision Date: 23 November 1981
• Citation: 54 N.Y.2d 294,429 N.E.2d 797,445 N.Y.S.2d 119
• Parties: , 429 N.E.2d 797 The PEOPLE of the State of New York, Appellant, v. Lloyd PAPERNO, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 119

445 N.Y.S.2d 119

54 N.Y.2d 294, 429 N.E.2d 797

The PEOPLE of the State of New York, Appellant, v. Lloyd PAPERNO, Respondent.

Court of Appeals of New York.

Nov. 23, 1981.

Robert M. Morgenthau, Dist. Atty. (Jerrold L. Neugarten, Robert M. Pitler and Daniel J. Castleman, Asst. Dist. Attys., of counsel), for appellant

John L. Pollok and Edward Gasthalter, New York City, for respondent.

OPINION OF THE COURT

GABRIELLI, Judge.

This appeal raises the question of the circumstances under which a prosecutor who has had significant involvement with the case at a pretrial stage should be disqualified from representing the People at the trial. We hold today that where the defendant, prior to trial, makes a significant showing that the prosecutor's prior investigative or prosecutorial conduct will be a material issue at the trial, the prosecutor should be recused. Where 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.

Following the arrest of a law assistant employed by Supreme Court, New York County, for bribe receiving, a Grand Jury investigation was begun to determine the extent of such activity by court employees. Defendant, a lawyer employed as a Special Referee by Supreme Court, New York County, appeared before the Grand Jury on three occasions under a grant of immunity. On several occasions during his testimony, defendant responded to the prosecutor's questions by stating that he did not recall the activity or conversation which was the subject of questioning.

As a result of his testimony on these three occasions, an indictment was returned against defendant, charging him with eight counts of criminal contempt in the first degree (Penal Law, § 215.51). The indictment alleged that defendant had contumaciously and unlawfully refused to answer proper interrogatories of the Grand Jury in that he gave "equivocal, evasive, conspicuously unbelievable and patently false testimony". The first count was dismissed before trial; the remaining seven counts were tried before a jury.

On the day that the trial was scheduled to commence, defense counsel moved to recuse the prosecutor, Assistant District Attorney Ferrara, who had questioned defendant before the Grand Jury, on the ground that Ferrara might be called as a witness for the defense. Defense counsel argued that the prosecutor's conduct before the Grand Jury would be a material issue in the case against defendant, because the substance and form of his interrogatories and his tone of voice were relevant to the question of whether defendant had committed the offenses charged. Moreover, defense counsel expressed concern that Ferrara would be in a position to argue his own credibility before the jury. ¹

The trial court found that the motion was untimely, as it was made on the eve of trial, and Ferrara's participation in the trial could have been anticipated at a much earlier stage of the proceedings. ² Notwithstanding the court's belief that the motion was untimely, it also denied the motion on the merits, finding that defense counsel had not made an adequate showing of the necessity for calling Ferrara as a witness.

Mr. Ferrara proceeded to prosecute the case against defendant. During the People's case, and over defense counsel's objection, Ferrara participated in the reading of defendant's Grand Jury testimony. In this regard, Ferrara, acting in his role as prosecutor before the Grand Jury, read the questions posed, and another member of the District Attorney's staff, acting in defendant's role, read the responses.

The defense theory focused on defendant's state of mind while he was testifying before the Grand Jury. In this connection, defendant testified that while in the "pit" of the Grand Jury room, he felt isolated, lonely, confused and frightened. He complained that Ferrara's questioning took on a loud, insistent, and sometimes threatening tone, that the questions were asked in rapid succession, and that he believed many questions were being repeated. Defendant explained that his answers were not meant to be evasive, rather, they were the result of his fear that the prosecutor was attempting to "trap" him into giving false answers.

On cross-examination of defense witnesses, Ferrara several times referred to his own role in the Grand Jury proceedings, in an apparent effort to demonstrate that defendant's fears regarding Ferrara's design were groundless. Furthermore, during summation, Ferrara again referred to his own role in prosecuting the proceedings before the Grand Jury. Defendant was convicted of all seven counts of criminal contempt in the first degree.

The Appellate Division reversed defendant's conviction, 77 A.D.2d 137, 432 N.Y.S.2d 499, and remitted the matter for a new trial, finding that the trial court should have granted defense counsel's motion to recuse Assistant District Attorney Ferrara. In so doing, the Appellate Division announced a broad rule of recusal based upon the principle that a lawyer must not act as an advocate in any case in which his own conduct is a material issue. ³ Because we disagree with the scope of this rule of disqualification as announced below, we now reverse and remit the matter to the Appellate Division for a determination of the factual issue involved on the basis of the rule we announce today.

As the Appellate Division correctly noted, two legal principles may form the basis of a motion to disqualify the prosecutor because of his pretrial involvement with the case against the defendant: the "advocate-witness rule" and the "unsworn witness rule".

The advocate-witness rule is embodied in the provisions of Disciplinary Rules 5-101(B) and 5-102 of the Code of Professional Responsibility, ⁴ and generally requires the lawyer to withdraw from employment when it appears that he or a member of his firm will be called to testify regarding a disputed issue of fact (see, also, Ethical Considerations 5-9, 5-10). Thus, once representation is undertaken, the lawyer must withdraw as advocate if it appears that he must testify on behalf of his own client, ⁵ or if it appears that he will be called as a witness to testify for the adverse party, where his testimony may be prejudicial to the client he is representing. These proscriptions also apply to the prosecuting attorney. If the prosecutor will be called as a witness for the People, to testify to a disputed material issue, he should be disqualified from trying the case. Similarly, if it appears that the court will allow the defense to call the prosecutor as a witness, and that the prosecutor will testify adversely to the People, the prosecutor should be disqualified.

In the case before us, the Appellate Division correctly concluded that the advocate-witness rule did not require the disqualification of Mr. Ferrara. Defense counsel did not establish, on the pretrial motion, that Ferrara was to be called as a witness for the People. Moreover, although defense counsel expressed a desire to call Ferrara as a witness during the presentation of the defendant's case, he did not establish that the testimony he sought would be adverse to the People. Indeed, the record of the pretrial motion indicates that any testimony Ferrara could give would be adverse to the defendant.

The unsworn witness rule poses more subtle problems in our efforts to preserve the right to a fair trial. This rule has no definitive contours, but generally stands for the proposition that the prosecutor may not inject his own credibility into the trial. Thus, we have reversed convictions where the prosecutor, to the prejudice of the defendant, has expressed his personal belief on matters which may influence the jury (People v. Tassiello, 300 N.Y. 425, 91 N.E.2d 872), has argued his own credibility on summation (People v. Lovello, 1 N.Y.2d 436, 439, 154 N.Y.S.2d 8, 136 N.E.2d 483; People v. Carter, 40 N.Y.2d 933, 389 N.Y.S.2d 835, 358 N.E.2d 517), has vouched for the credibility of the People's witnesses (People v Puglisi, 44 N.Y.2d 748, 405 N.Y.S.2d 680, 376 N.E.2d 1325), or has, by cross-examination, suggested the existence of facts not in evidence (People v. Duncan, 13 N.Y.2d 37, 241 N.Y.S.2d 825, 191 N.E.2d 888). The primary rationale for so limiting the prosecutor's conduct is rooted in a concern that the criminal process be fair. Such conduct on the part of the prosecutor amounts to a subtle form of testimony against the defendant, as to which the defendant may have no effective means of cross-examination. Hence, the rule is founded upon the possible danger that the jury, impressed by the prestige of the office of the District Attorney, will accord great weight to the beliefs and opinions of the prosecutor.

Thus, in the application of the unsworn witness rule, we seek to preserve the defendant's right to a fair trial by recognizing the prosecutor's role as that of advocate for the People. This same concern exists in cases where the prosecutor's pretrial involvement with the defendant raises the possibility that the prosecutor's conduct will be an issue at the trial. The Appellate Division, seeking to effectuate the "spirit" of the unsworn witness rule, held that, in any case in which the prosecutor's pretrial conduct is a material issue, he must be recused. Although we recognize that the utility of such a per se rule rests in the ease of its application, we believe it is too broad a rule of recusal, for it fails to take into account the interest of the District Attorney's office in choosing the lawyer it wishes to have act as trial counsel, ⁶ and fails to allow for consideration of less drastic alternatives which might afford full protection to the defendant under such circumstances. A more flexible approach is needed to deal with the problems of disqualification of the prosecutor--one that accommodates both the interest of the defendant in a fair...