People v. Pennachio

Decision Date27 December 1995
PartiesThe PEOPLE of the State of New York, Plaintiff, v. Joseph PENNACHIO, Steven Ruiz and Anthony Scarpati, Defendants.
CourtNew York Supreme Court

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 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 (United States v. McPartlin, supra, 595 F.2d, at 1336), but also serves to expedite trial preparation and the trial itself (United States v. McPartlin, supra, 595 F.2d, at 1337).

Considering its policy implications as well as its acceptance in the Federal courts and several other states, this court holds that there exists in New York a common interest privilege. At trial, the court will sustain any objection to testimony that is covered by this privilege.

Assuming that confidential joint defense communications were divulged to the prosecutor by Tanico, the next legal issue for consideration is whether the fruits derived from such communications are suppressible.

Where there is a violation of a defendant's constitutional rights, any fruits of such violation are suppressible (see, Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441; Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081). Both New York and Federal courts have suggested that a Sixth Amendment violation occurs where the government interferes with or intrudes in the attorney-client relationship (see, Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246; People v. Pobliner, 32 N.Y.2d 356, 364, 345 N.Y.S.2d 482, 298 N.E.2d 637; United States v. Melvin, 650 F.2d 641, 645). Therefore, if the defendants can show that the prosecutor interfered with their attorney-client relationship or otherwise show government misconduct, suppression of derivative evidence would be appropriate (see, People v. Curatolo, 76 A.D.2d 524, 531, 431 N.Y.S.2d 713).

However, the moving papers contain no indication here of any police or prosecutorial misconduct. There is no proof that Tanico was acting as an informant for the prosecutor nor is there any indication that privileged communications were intercepted or compelled by the government. Because there is no governmental misconduct to be deterred in a situation such as this, there is no need to apply the exclusionary rule traditionally applied to constitutional violations (see, People v. McGrath, 46 N.Y.2d 12, 21, 412 N.Y.S.2d 801, 385 N.E.2d 541).

In this case, the papers are insufficient to raise a Sixth Amendment claim. Suppression based on the Sixth Amendment is denied.

Suppression may nonetheless be appropriate where there is a violation of a defendant's statutory rights (see, People v. Patterson, 78 N.Y.2d 711, 717, 579 N.Y.S.2d 617, 587 N.E.2d 255), especially where the statute implicates constitutional rights (see, People v. Taylor, 73 N.Y.2d 683, 543 N.Y.S.2d 357, 541 N.E.2d 386; People v. Gallina, 66 N.Y.2d 52, 495 N.Y.S.2d 9, 485 N.E.2d 216) or substantial privacy interests (see, People v. Moselle, 57 N.Y.2d 97, 454 N.Y.S.2d 292, 439 N.E.2d 1235).

There are cases in New York holding that the attorney-client privilege "is not constitutionally guaranteed" (People v. O'Connor, 85 A.D.2d 92, 97, 447 N.Y.S.2d 553; People ex rel. Vogelstein v. Warden of County Jail, 150 Misc. 714, 716, 270 N.Y.S. 362). There are also cases in New York that speak of the attorney-client privilege as having a constitutional dimension (see, Manufacturers and Traders Trust Co. v. Servotronics, Inc., 132 A.D.2d 392, 395, 522 N.Y.S.2d 999 ["The attorney-client privilege * * * is strongly rooted in the constitutional right to counsel"]; see also, People v. Hairston, 111 Misc.2d 691, 693, 444 N.Y.S.2d 853; People v. George, 104 Misc.2d 630, 633, 428 N.Y.S.2d 825). State courts outside of New York have also suggested that a relationship exists between the attorney-client privilege and the Constitution (see, People v. Knuckles, 165 Ill.2d 125, 135, 209 Ill.Dec. 1, 6, 650 N.E.2d 974, 979; People v. Swearingen, 649 P.2d 1102, 1104 [Col]; State v. Pratt, 284 Md. 516, 520, 398 A.2d 421, 423; State v. Kociolek, 23 N.J. 400, 415, 129 A.2d 417, 425).

In spite of the possible constitutional ramifications, information derived from a violation of the attorney-client privilege has been used to establish probable cause for a search warrant by some courts (see, State v. Sandini, 395 So.2d 1178 [Fla App.]; People v. Shiflet, 125 Ill.App.3d 161, 80 Ill.Dec. 596, 465 N.E.2d 942).

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3 cases
  • Wellin v. Wellin, s. 2:13-cv-1831-DCN
    • United States
    • U.S. District Court — District of South Carolina
    • September 30, 2016
    ...any confidential communications exchanged among them are privileged against the outside world." People v. Pennachio , 167 Misc.2d 114, 637 N.Y.S.2d 633, 635 (N.Y. Sup. Ct. 1995). It is sometimes considered distinct from the common interest doctrine, which applies "when parties with separate......
  • Aetna Cas. and Sur. Co. v. Certain Underwriters at Lloyd's London
    • United States
    • New York Supreme Court
    • February 17, 1998
    ... ... and a client is sufficient to deprive the communication of the confidentiality which is one of the pillars of the privilege (see, e.g., People v. Harris, 57 N.Y.2d 335, 343, 456 N.Y.S.2d 694, 442 N.E.2d 1205 [1982]; People v. Buchanan, 145 N.Y. 1, 26, 39 N.E. 846 [1895] ). The New York ... Borcsok, 107 A.D.2d 42, 43, 485 N.Y.S.2d 766 [2d Dept.1985] ["in furtherance of a common defense"]; People v. Pennachio, 167 Misc.2d 114, 118-19, 637 N.Y.S.2d 633 [Sup.Ct. Kings Co.1995] ["ongoing common enterprise" "joint defense effort or strategy"]; People v ... ...
  • Parisi v. Leppard
    • United States
    • New York Supreme Court
    • May 2, 1997
    ...In re Megan-Racine Associates, 189 B.R. 562, 571; People v. Osorio, 75 N.Y.2d 80, 550 N.Y.S.2d 612, 549 N.E.2d 1183; People v. Pennachio, 167 Misc.2d 114, 637 N.Y.S.2d 633. As expressed by New York courts in the criminal arena, this extension is based on the notion that a defendant and his ......
5 books & journal articles
  • Table of Cases
    • United States
    • James Publishing Practical Law Books Archive New York Civil Practice Before Trial. Volume 2 - 2014 Contents
    • August 18, 2014
    ...Osorio , 75 NY2d 80, 550 NYS2d 612 (1989), §25:115 People v. Patterson , 39 NY2d 288, 383 NYS2d 573 (1976), §25:244 People v. Pennachio , 167 Misc2d 114, 637 NYS2d 633 (Sup Ct Kings Co 1995), §25:115 People v. Poppe , 3 NY2d 312 (1957), §25:244 People v. Riley , 46 Misc2d 221; 258 NYS2d 932......
  • Table of Cases
    • United States
    • James Publishing Practical Law Books Archive New York Civil Practice Before Trial. Volume 2 - 2016 Contents
    • August 18, 2016
    ...Osorio , 75 NY2d 80, 550 NYS2d 612 (1989), §25:115 People v. Patterson , 39 NY2d 288, 383 NYS2d 573 (1976), §25:244 People v. Pennachio , 167 Misc2d 114, 637 NYS2d 633 (Sup Ct Kings Co 1995), §25:115 People v. Poppe , 3 NY2d 312 (1957), §25:244 People v. Riley , 46 Misc2d 221; 258 NYS2d 932......
  • Privileges
    • United States
    • James Publishing Practical Law Books Archive New York Civil Practice Before Trial. Volume 1 - 2014 Contents
    • August 18, 2014
    ...who share information in furtherance of a common defense. [ People v. Osorio , 75 NY2d 80, 550 NYS2d 612 (1989); People v. Pennachio , 167 Misc2d 114, 637 NYS2d 633 (Sup Ct Kings Co 1995).] Civil cases. It is clear that in federal cases the so-called “common interest” or “common defense” ex......
  • Privileges
    • United States
    • James Publishing Practical Law Books Archive New York Civil Practice Before Trial. Volume 1 - 2016 Contents
    • August 18, 2016
    ...who share information in furtherance of a common defense. [ People v. Osorio , 75 NY2d 80, 550 NYS2d 612 (1989); People v. Pennachio , 167 Misc2d 114, 637 NYS2d 633 (Sup Ct Kings Co 1995).] Civil Cases. It took several years for the appellate courts to affirmatively hold that, in New York, ......
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