People v. Stewart

• Decision Date: 08 April 1997
• Citation: 656 N.Y.S.2d 210,230 A.D.2d 116
• Parties: The PEOPLE of the State of New York Appellant, v. Lynne STEWART, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 210

656 N.Y.S.2d 210

230 A.D.2d 116

The PEOPLE of the State of New York Appellant, v. Lynne STEWART, Defendant-Respondent.

Supreme Court, Appellate Division First Department.

April 8, 1997.

Nikki Kowalski, of counsel (Mark Dwyer on the brief, Robert M. Morgenthau), for appellant,

Stanley L. Cohen, for defendant-respondent.

Before MURPHY, P.J., and NARDELLI, RUBIN and TOM, JJ.

PER CURIAM.

If a fraud was perpetrated on a court in obtaining a judgment, there is authority for the vacatur of such a judgment (Matter of Lockett v. Juviler, 65 N.Y.2d 182, 186, 490 N.Y.S.2d 764, 480 N.E.2d 378). In fact, Criminal Procedure Law 440.10[1] and CPLR 5015(a)(3) specifically provide for such a remedy. That is not the case before us. We deal in this matter with a motion pursuant to CPL 210.40 to dismiss an indictment in "furtherance of justice."

Defendant, an attorney, was defense counsel for Dominick Maldonado, one of six persons indicted in a drug conspiracy case. One of the other persons indicted, Susan Chang, who has since died of cancer, cooperated with the prosecution and testified before the Grand Jury that the head of the drug ring had provided lawyers for all the defendants, and that attorney Stewart, the defendant in the instant case, was the drug head's lawyer as well as Maldonado's; the witness also testified that her defense counsel had warned her not to cooperate with the prosecution because the head of the ring would have her killed and that the head of the ring would find out about the cooperation through attorney Stewart, because all the lawyers "go back to Lynne Stewart."

Shortly after the above testimony the prosecution subpoenaed Stewart and two other defense attorneys. Compliance with the subpoenas would have given the lawyers full transactional immunity (CPL 190.40). Their motion to quash was denied (Matter of Grand Jury Subpoena of Stewart, 144 Misc.2d 1012, 545 N.Y.S.2d 974). This Court modified only by staying the subpoenas until the attorneys' representation of the defendants should be terminated, noting that the information sought was neither privileged nor directly incriminatory of their clients but that staying the enforcement of the subpoenas until appellants' representations of the defendants were terminated would ameliorate the "inevitable 'chilling effect' " of the subpoenas (Matter of Grand Jury Subpoena of Stewart, 156 A.D.2d 294, 548 N.Y.S.2d 679).

Maldonado told the court that he wanted a new lawyer but that he was afraid to discharge Stewart because the person who paid her fee was "too smart" and his life and his family's lives would be in danger. The court then appointed another lawyer (shadow counsel) to represent Maldonado in his attempted cooperation. When Stewart became aware of the arrangement, she asked to be relieved. Her application was granted.

The prosecution once again subpoenaed Stewart. She appeared but responded to every question by refusing to answer, on constitutional grounds and on the right of any client of hers, past or present, to absolutely privileged communications with his attorney. Stewart was indicted for criminal contempt in the first degree (Penal Law § 215.51), a Class E felony, 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 evidence to establish the offense charged had not been presented. The motion court found, however, that legally sufficient evidence had been presented to the Grand Jury. The motion court found further that neither of the legal grounds advanced by defendant--that the prosecutor had improperly charged Penal Law contempt rather than Judiciary Law contempt and that the same Grand Jury that had indicted defendant's client had been improperly used to indict defendant--would independently justify dismissal of the indictment. The court, however, expressly set out to examine and discuss the issues raised by those legal grounds in its examination and consideration of defendant's section 210.40(1) motion.

The motion court, granting the legality of the prosecutor's choice of criminal rather than Judiciary Law contempt, nevertheless felt constrained to ask why the prosecutor chose criminal contempt and whether such choice was just and fair. It then concluded that the prosecutor's choice of criminal contempt all but precluded a review of the appropriateness of Ms. Stewart's question-by-question refusals. But the appropriateness of her refusals is the very question of her guilt or innocence which should be resolved by a trial. CPL 210.40(1) and its criteria paras. (a) through (j) rather "present, as a matter of legislative policy, a broad range of considerations basically unrelated to guilt or innocence..." (emphasis supplied) (Preiser, Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, CPL 210.40, at 703).

The motion court conceded that the offense charged is serious and, evidently, that the extent of the harm done might be serious; but it noted, citing the prosecutor's failure to obtain such evidence by other routes, that defendant "can hardly be held totally accountable for the prosecution's inability to obtain evidence against 'Lincoln' (the alleged head of the narcotics ring)." (158 Misc.2d, supra, at 782, 601 N.Y.S.2d 983.) The failure to obtain such evidence by other routes, however, made it all the more important that the lone remaining chance or few remaining chances to uncover a drug conspiracy not be thwarted by an improper refusal to testify. And the propriety or impropriety of the refusal should be left for trial, unless there is some "compelling factor" consistent with criteria (a) through (j) of CPL 210.40(1) requiring dismissal (see, CPL 210.40[1] ).

The dissent argues that if this Court had been aware that defendant was no longer Maldonado's counsel, its decision on the motion to quash the indictment would have been different and that defendant was "deprived of her strongest arguments in this Court." But, since three members of the panel who elected to stay Ms. Stewart's appearance before the Grand Jury until her representation was terminated nevertheless concluded that "the subpoenas should not be quashed", and the two dissenters would also have denied the motion to quash the subpoena and permitted "immediate testimony" before the Grand Jury (Matter of Grand Jury Subpoena of Stewart, supra, at 294, 548 N.Y.S.2d 679), the reasonable conclusion is that the court would have unanimously directed defendant's immediate testimony before the Grand Jury had it known she was not Maldonado's counsel at that time.

In any event, as noted, we are dealing only with the issue of whether the motion court abused its discretion when it granted defendant's motion to dismiss the indictment in furtherance of justice pursuant to CPL 210.40.

The dissent refers to the "unsettled state of the law" concerning the issuance of Grand Jury subpoenas to defense counsel. However, the Court of Appeals has found that fee arrangements between an attorney and his or her former client and between an attorney and a third party who may have retained the attorney to appear for such client are not protected by the attorney-client privilege (Matter of Priest v. Hennessy, 51 N.Y.2d 62, 431 N.Y.S.2d 511, 409 N.E.2d 983). "The name of the person retaining an attorney for another and the amount of the retainer paid are quite simply not the confidences which the privilege was intended to protect" (id., at 70, 431 N.Y.S.2d 511, 409 N.E.2d 983). Even if they were, moreover, public policy considerations might in some circumstances still require disclosure (id., at 70, 431 N.Y.S.2d 511, 409 N.E.2d 983; Matter of Jacqueline F., 47 N.Y.2d 215, 417 N.Y.S.2d 884, 391 N.E.2d 967). This is not "unsettled" law.

CPL 210.40(1) provides that an indictment or a count thereof may be dismissed in furtherance of justice when "such dismissal is required as a matter of judicial discretion by the existence of some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant upon such indictment or count would constitute or result in injustice."

In determining whether dismissal is appropriate, ten factors, lettered (a) to (j) in the statute, must be considered. The first three, (a) to (c), clearly weigh against defendant: (a) the seriousness of the offense and the circumstances in which it was committed, after litigation with respect to her duty to testify and after her client, in terror of the head of the ring, had accepted other counsel to handle his cooperation, are clear and the motion court concedes the seriousness of the offense; (b) the extent of harm caused by it is obvious; no charges were brought against the head of the ring, the only evidence against him before the Grand Jury coming from his accomplices (see, CPL 60.22; People v. Breland, 83 N.Y.2d 286, 609 N.Y.S.2d 571, 631 N.E.2d 577); it seems that the motion court concedes the extent of the harm caused but concludes that defendant is not "totally accountable" (158 Misc.2d, supra, at 782, 601 N.Y.S.2d 983) for it; and (c) the evidence of her guilt of violating Penal Law § 215.51 is strong, and the motion court concedes that it is strong. Factors (e) to (h) also weigh against defendant: (e) there has been no misconduct by law enforcement personnel as the motion court concedes; (f) the purpose of the indictment and of the prescribed sentence was to get defendant to testify, though its success could not be guaranteed; dismissal would defeat that purpose; the argument that a milder sanction might have been more effective is unconvincing; (g) the impact of dismissal of the charge against a lawyer on the ground that disbarment is too harsh a penalty, a ground not available to a layperson, could only injure...