People v. Stewart
| Decision Date | 18 May 1993 |
| Citation | 601 N.Y.S.2d 983,158 Misc.2d 776 |
| Parties | The PEOPLE of the State of New York v. Lynne STEWART, Defendant. .A.S. Part 63 |
| Court | New York Supreme Court |
Matthew Menchel, Office of Robert Morgenthau, New York City, for plaintiff.
Defendant, an attorney at law, is charged in a one count indictment with Criminal Contempt in the First Degree, a class E felony under Penal Law § 215.51. This provision makes it unlawful to "contumaciously and unlawfully" refuse to be sworn as a witness, before a grand jury, or, when after having been sworn as a witness, refuse to answer any legal and proper interrogatory. The penalties for conviction include fines and imprisonment (Penal Law § 70.00[2][d] and Penal Law § 80.00) and in the case of an attorney, automatic disbarment (Judiciary Law § 90[4][a].
Attorney Lynne Stewart represented Dominick Maldonado (a.k.a. "Mingo"), one of several individuals charged with being members of an alleged narcotics conspiracy. The indictment against attorney Stewart alleges that in relation to legal services rendered to her client Dominick Maldonado, she refused to produce records and to answer questions regarding her fee arrangements and retainer agreements, before a Grand Jury investigating a major narcotics operation on the Lower East Side.
The defendant moves this Court to dismiss the indictment charging her with Penal Law contempt on various legal grounds including that the evidence before the Grand Jury was legally insufficient, that the People improperly failed to pursue the remedy of "civil" (Judiciary Law) contempt before seeking to punish her for criminal (Penal Law) contempt, and that the assistant district attorney committed prosecutorial misconduct in securing the indictment. Alternatively, she seeks dismissal of the indictment on equitable grounds pursuant to CPL § 210.40 (Clayton motion).
On or about July 5, 1989, attorney Stewart was served with a grand jury subpoena by agents of the Special Narcotics Prosecutor. The subpoena directed Ms. Stewart to appear and testify about the fees and fee arrangements regarding her client. The defendant moved to quash the subpoena.
On August 3, 1989 the Hon. Leslie Crocker Snyder issued a written decision, denying the motion to quash. (Matter of Grand Jury Subpoena [Stewart], 144 Misc.2d 1012, 545 N.Y.S.2d 974). The Appellate Division affirmed, finding that information sought about fee arrangements was not privileged. (156 A.D.2d 294, 548 N.Y.S.2d 679).
On January 18, 1991, attorney Stewart was called before the Grand Jury and refused to answer the various questions propounded by the prosecuting attorney concerning fee arrangements and retainer agreements, whether she had represented Dominick Maldonado, how she came to represent Dominick Maldonado and her fee arrangements concerning said representation.
Absent special circumstances, information about the identity of a client or about the nature and source of the fee is not privileged and an attorney may be subpoenaed before a Grand Jury to testify on these subjects. While the fee "privilege" question appears well settled, the constitutional dimensions of the issue of subpoenaed attorneys are not.
These constitutional issues are not merely of theoretical concern. New York has a disciplinary rule regarding such "confidences and secrets." DR 4-101 (Code of Professional Responsibility McKinney's Book 29 [22 NYCRR 1200.19] (a lawyer shall not knowingly reveal a confidence or secret of a client).
The prospect of the lawyer testifying about matters that arose in confidential discussions has numerous negative ramifications. First, the lawyer, even where the subject is fees from a third party, may ultimately be a witness against his or her client, which is a potential violation of DR 5-102. (Code of Professional Responsibility McKinney's Book 29 [22 NYCRR 1200.21]. Secondly, lay clients do not necessarily draw fine distinctions between the legal terms "privilege," "confidence" and "secrets": "The very presence of the attorney in the grand jury room, even if only to assert valid privileges, can raise doubts in the client's mind as to his lawyer's unfettered devotion to the client's interests and thus impair or at least impinge upon the [lawyer]-client relationship." (In re Grand Jury Investigation [Sturgis], 412 F.Supp. 943, 946 [E.D.Pa.1976]. One cannot help but ask if that is what occurred here. Ms. Stewart was first served with a subpoena on or about July 5, 1989. The litigation over the motion to quash lasted the summer and fall of 1989 and on November 9, 1989, apparently on his own initiative, Ms. Stewart's client, Mr. Maldonado, called the prosecutor.
Finally there are broader policy implications to this practice of prosecutors issuing Grand Jury subpoenas to lawyers. This chill on the lawyer/client relationship has been termed by one federal judge to be an (In re Grand Jury Matters, 593 F.Supp. 103, 107 [D.NH.1984], aff'd, 751 F.2d 13 [1st Cir.1984].
After inspecting the Grand Jury minutes the Court finds that legally sufficient evidence was presented before the Grand Jury to indict the defendant for the crime of Criminal Contempt under Penal Law § 215.51. Furthermore, this Court has concluded that neither of the legal grounds advanced by the defendant would independently justify dismissal of the indictment. Nevertheless, each of these legal arguments raises serious issues and they will be examined and discussed in the context of the Court's examination and consideration of the ten statutory Clayton factors (CPL § 210.40 in defendant's motion to dismiss the indictment in the interests of justice.
Certainly, a Clayton motion is not an inappropriate vehicle to explore the implications of what transpired here because the Court is in the singular position of being able to assess the entire set of circumstances within the confines of such a motion. Our strict rules of evidence would more than likely prohibit the defendant from being able adequately to explain the legal setting and reason for acts which to a layperson would initially at least appear to be lawless and defiant. Furthermore, since a jury does not concern itself with punishment, it would not be made aware of the consequences of a felony conviction for Ms. Stewart, namely automatic disbarment. Finally, the only witness to appear before the Grand Jury who testified regarding the alleged fee arrangement of Maldonado and Ms. Stewart was Ms. Chang, who is now deceased. Thus Ms. Stewart would be deprived of an opportunity to fully explore this issue in her own defense.
If the prosecutor's objective was to obtain information and not merely to punish attorney Stewart for her withholding of information, why not utilize the corresponding Judiciary Law contempt provision which has historically been employed to coerce recalcitrant witnesses (Matter of Koota v. Colombo, 17 N.Y.2d 147, 269 N.Y.S.2d 393, 216 N.E.2d 568 [1966]. By utilizing Penal Law contempt the prosecutor essentially foreclosed an immediate and adequate appellate review of the questions asked before the Grand Jury and turned the focus to punishing attorney Stewart, thereby ending any chance to obtain the sought-after information.
The statutory language of Judiciary Law contempt ("contumacious and unlawful refusal to be sworn as a witness; or, after being sworn, to answer any legal and proper interrogatory" Judiciary Law § 750[5] is substantially similar to the Penal Law contempt provision under which Ms. Stewart was indicted: "When [a witness] contumaciously and unlawfully refuses to be sworn as a witness, before a grand jury, or when after having been sworn as a witness, before a grand jury, [the witness] refuses to answer any legal and proper interrogatory." (PL § 215.51) The district attorney argues correctly that New York law allows the prosecutor discretion to proceed under either of two applicable provisions, and he could have argued additionally that the Penal Law section is more specific in that it utilizes the words "grand jury."
The question the court must consider in weighing defendant's Clayton motion, however, is not the legality of the prosecutor's choice, but why he chose criminal contempt over the Judiciary Law contempt and whether such a choice was just and fair under all the circumstances.
While "civil" in nature, Judiciary Law contempt contains strong provisions to coerce testimony, the prosecuting attorney's stated purpose. Under Judiciary Law § 751, the recalcitrant witness may be fined, not exceeding one thousand dollars or imprisoned for not exceeding thirty days "or both, in the discretion of the Court." (emphasis added). Should the thirty-day confinement not achieve the desired result of obtaining testimony, there would be nothing to prevent the prosecutor from bringing Ms. Stewart back before the grand jury as long as the grand jury remained in session. Furthermore, having been subjected to "civil" contempt of Judiciary Law § 750 does not shield one from being thereafter punished for Penal Law contempt for the very "same conduct" (see Penal Law § 215.54).
In its motion to dismiss the indictment as a matter of law, the defense relies on a long line of federal cases to support the proposition that the prosecution must...
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People v. Stewart
...and moved for an order dismissing the indictment in furtherance of justice (CPL 210.40). Her motion was granted (People v. Stewart, 158 Misc.2d 776, 601 N.Y.S.2d 983 [portions of opinion omitted] Defendant had first moved to dismiss the indictment on the ground that legally sufficient evide......