People v. Pennachio

• Court: United States State Supreme Court (New York)
• Writing for the Court: ROBERT S. KRIENDLER
• Citation: 167 Misc.2d 114,637 N.Y.S.2d 633
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Joseph PENNACHIO, Steven Ruiz and Anthony Scarpati, Defendants.
• Decision Date: 27 December 1995

Page 633

637 N.Y.S.2d 633 167 Misc.2d 114 The PEOPLE of the State of New York, Plaintiff,
v.
Joseph PENNACHIO, Steven Ruiz and Anthony Scarpati, Defendants. Supreme Court, Kings County. Dec. 27, 1995.

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Charles J. Hynes, District Attorney of Kings County (Michael Vecchione, Jonathan Frank, Robert Friedman, Joseph Petrosino, and Emilio Grillo of counsel) for plaintiff.

Joseph R. Benfante, New York City, for Steven Ruiz, defendant.

James J. DiPietro, Brooklyn, and Joseph Gentile, Williston Park, for Joseph Pennachio, defendant.

Michael Rosen, New York City, and Benjamin Brofman for Anthony Scarpati, defendant.

ROBERT S. KRIENDLER, Justice.

Defendant moves to suppress certain anticipated testimony and any fruits thereof on the basis that the testimony would violate the common interest privilege. This decision explains the court's oral ruling.

Defendants Joseph Pennachio, Steven Ruiz, Anthony Scarpati and John Tanico were indicted for Murder in the Second Degree in connection with the beating death of Manuel Aucaquizphi in Dyker Park. The four defendants and their counsel attended several meetings where it is alleged that a joint defense strategy was discussed. Defendant Tanico subsequently pleaded guilty to Manslaughter in the First Degree and agreed to testify for the People. The other three defendants allege that Tanico disclosed to the prosecutor communications made in confidence at these joint defense meetings which would be protected under the common interest privilege.

The common interest privilege is an evidentiary rule of exclusion which makes inadmissible certain confidential communications by one party to the attorney for another party where a joint defense effort or strategy has been agreed to by the parties

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and their attorneys (United States v. Schwimmer, 892 F.2d 237, 243). The rule serves to protect the confidentiality of such communications where the parties have a joint interest (id.). Only those communications made in the course of an ongoing common enterprise intended to further the enterprise are protected (United States v. Schwimmer, supra, 892 F.2d, at 243).

The common interest privilege has been adopted by Federal courts (Continental Oil v. United States, 330 F.2d 347; Hunydee v. United States, 355 F.2d 183; United States v. McPartlin, 595 F.2d 1321), as well as several state courts over the past century (Chahoon v. Commonwealth, 62 Va. 822; Schmitt v. Emery, 211 Minn. 547, 2 N.W.2d 413; Visual Scene v. Pilkington Bros., 508 So.2d 437 [Fla.]. The rule is embodied in Supreme Court Standard 503(b). Although Supreme Court Standard 503(b) has never been adopted into the Federal Rules of Evidence, it provides courts with a comprehensive guide to the federal common law of attorney-client privilege (see, United States v. [Under Seal], 748 F.2d 871, 874 n. 5; Citibank, N.A. v. Andros, 666 F.2d 1192, 1195 n. 6). The language of Supreme Court Standard 503(b) has been incorporated into the statutory evidence codes of Arkansas (Ark Stat § 16-41-101), Hawaii (Haw.Rev.Stat., Rules of Evid, Rule 503, § 626-1), Louisiana (La.Stat.Annot.Code of Evid.Art. 506), Nebraska (Neb.Rev.Stat. § 27-503), Nevada (Nev.Rev.Stat. 49.095), Oregon (Ore.Rev.Stat. § 40.225), South Dakota (S.D.Stat. § 19-13-3), Texas (Tex.Rules of Civ.Evid., Rule 503), and Wisconsin (Wis.Stat.Annot. 905.03).

The common interest privilege is not found in New York's statute dealing with the attorney-client privilege (CPLR 4503). ¹ However, some courts have, in dicta, assumed the rule's existence (see, People v. Osorio, 75 N.Y.2d 80, 85, 550 N.Y.S.2d 612, 549 N.E.2d 1183; People v. Borcsok, 107 A.D.2d 42, 44, 485 N.Y.S.2d 766; Matter of Two Grand Jury Subpoena Duces Tecum, NYLJ, July 14, 1995, at 26, col. 6).

In New York where one attorney represents multiple parties concerning a matter of common interest, any confidential communications exchanged among them are privileged against the outside world (Wallace v. Wallace, 216 N.Y. 28, 109 N.E. 872; Hurlburt v. Hurlburt, 128 N.Y. 420, 28 N.E. 651; La Barge v. La Barge, 284 App.Div. 996, 135 N.Y.S.2d 317). Thus, if the four defendants here were represented by a single attorney, then communications exchanged at the joint meetings would be privileged under New York law (id.).

However, both New York and Federal courts have strongly recommended that criminal co-defendants retain separate counsel in order to avoid possible conflicts of interest (see, People v. Gomberg, 38 N.Y.2d 307, 313, 379 N.Y.S.2d 769, 342 N.E.2d 550; People v. Davis, 72 A.D.2d 69, 74, 423 N.Y.S.2d 98; Smith v. Regan, 583 F.2d 72, 77; Perez v. Metz, 459 F.Supp. 1131, 1141). To hold that discussions regarding a common defense are privileged only where co-defendants are represented by a single attorney would create a dilemma: Should co-defendants retain a single attorney who would be faced with possible conflicts of interest or should they retain separate attorneys but lose the advantage of confidentiality?

The common interest privilege is good policy in that it not only provides criminal co-defendants with a fair opportunity to mount a proper defense...