LAW-Blumenfeld Rules Unethical Queens D.A.'s Questioning of Suspects Before Arraignment

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Blumenfeld Rules Unethical Queens D.A.'s Questioning of Suspects Before Arraignment

Daniel Wise

New York Law Journal

04-18-2012


Queens Acting Supreme Court Justice Joel L. Blumenfeld (See Profile) ruled this morning that the Queens District Attorney's program of interviewing suspects while they are awaiting arraignment is "misleading and deceptive" and violates New York State's Rules of Professional Conduct.

Blumenfeld found the interview process deceptive because it "misleads the defendant into believing that the prosecutor is there to help him out" by suggesting that the prosecution will investigate "his side of the story."

"But none of that occurred here," Blumenfeld found.

As a "sanction" for the ethics violation, Justice Blumenfeld ruled in People v. Perez, 1202/09, that the the office of District Attorney Richard Brown is precluded from using in its direct case a statement that a defendant made in 2009 during questioning at the Kew Gardens Criminal Courthouse.

Blumenfeld stopped short of suppressing the statement, ruling that he was unable to determine whether the circumstances of the interview had impaired the suspect's ability to make an informed decision about speaking to a prosecutor and detective. The suspect, Elisaul Perez, is charged with assault and robbery of an iPod and $300 in cash.

The district attorney previously had gone to the Appellate Division, Second Department, to block the justice's exploration of prosecutorial ethics at a suppression hearing. But the appellate court rejected Mr. Brown's request for a writ of prohibition (NYLJ, Oct. 7, 2011).

Blumenfeld's decision to "sanction" the prosecution, rather than to "suppress" Mr. Perez's statement, raises a question as to whether the prosecutor's office will be able to appeal. The prosecution by statute is entitled to appeal a ruling suppressing evidence if it certifies that the suppressed evidence is essential to its case.

Chief Assistant District Attorney John Ryan vowed in an interview after the brief court session to pursue an appellate remedy whether through a direct appeal or an Article 78. Robert Masters, deputy executive assistant district attorney, also said in an interview that "it is disheartening to have your ethics questioned in a forum you can't defend."

Assistant District Attorney Donna Aldea, who handled the prosecution's argument before the appellate court, further criticized Justice Blumenfeld for couching his ruling in a manner calculated to deprive the prosecution of the ability to appeal."

"This is exactly the harm that we said would occur when we brought the Article 78," seeking to block Justice Blumenfeld from proceeding to examine the ethics of the interview procedure.

Suspects Interviewed

As of mid-February, the district attorney's office said that 9,382 suspects have been asked since 2007 if they wished to be interviewed. Three quarters of the suspects agreed to talk without a lawyer present. No questioning was conducted of those who invoked their Miranda rights.

Confessions were received from 20 percent of those who were asked to be interviewed. In addition, according to data current through the end of January, the prosecutors at the interviews did not press charges against 84 suspects because they were convinced by the suspects' statements and/or demeanor that they were actually innocent.

In the Perez case, the suppression hearing started in late 2009 and Justice Blumenfeld took five days of testimony before the year was out. Then in March 2010, while keeping the record open, the judge asked Ellen Yaroshefsky, an ethics professor at the Benjamin N. Cardozo School of Law, to prepare a report to assist him in assessing the ethics issues related to pre-arraignment questioning. Ms. Yaroshefsky in August 2010 filed a report which concluded that the interview procedures were misleading in violation of Rule 8.4 of Rules of Professional Conduct which prohibits attorneys from engaging in "misrepresentation."

About six weeks later, on Oct. 1, the district attorney's office filed the Article 78 petition asking the Second Department to bar Justice Blumenfeld from continuing further with the hearing, claiming he was acting without legal authority, Brown v. Blumenfeld, 9688/10. Blumenfeld stayed the hearing pending the appeal.

@|Daniel Wise is a freelance writer in New York.


Source: www.newyorklawjournal.com