hossu decision and order

8/13/2019 Hossu Decision and Order

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CH M CS OFHON I ESTER B ADLER

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SUPREME COURT OF ST TE OF NEW YORKRICHARD J D RONCO

WESTCHESTER COUNTY COURTHOUSE111 DR MARTIN LUTHER KING JR BOULEVARDWHITE PLAINS NEW YORK 6

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Date:To:From:Fax No..:Subject:Number of PagesIncluding Cover:

November 19. 2013William Milaccio Esg.The Chambers of the Hon. Lester B. Adler995 4672PeooIe v Hossu

AnygilAstiOns pI r Ann AHirns 4 8245ifOur Fax Number: 914 995 8653

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. . xPEOPLE OF THE STATE OF NEW YORK

ginstALEXANDRU HOSSU,

Defendant. . ___

ADLER J.By notice of motion dated October 28, 2013, the People move for an order

directing that an qu ry be conducted pursuant to the Court of Appeals holding in opl omberg 38 NY 2d 307, 379 N.Y.S.2d 769, 342 N.E.2d 550 . The Peoplehave not however, moved for an order disqualifying defendants current attorney. In anaffirmation in response dated November 6 2013, defense counsel st tes that neitherhe nor the defendant believe that any conflict exists, but does not oppose a lim itedinquiry by the Court.

The People contend that a potential conflict of interest exists between defendantand his current attorney stemming from the fact that Mentzer is the brother-in-law toPutnam County District Attorney Adam B. Levy who is disqualified by court order from

Subsequent to the il in of the original notice of motion the People filed supplementalaffirmation without first contacting the Court to request permission to do so. Thereafter the defendntfiled an affirm ation in surrepty also without requesting permission from the Court prior to filing thesubmission. Nevertheless the Court h s considered both su missions in rendering its decision. TheCourt fully expects that th is type of prctice will not continue in the future.

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o cmm the statutoty time period forapIS as right GPLR 5513[aJ. yto serve a copy otthis oflierth i of erby upon fl paesSUPREME COURT: STATE OF NEW YORK.COUNTY OF PUTNAM

FILEDAND ENTEREON i2Q 3WESTCHESTERCOUNTY LERK

PlSO ORDER

Indictment No.: 13-32


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acting in this casearid who has contributed to the defense of the case and both sued

and licy affackedth utn ou Sheriff The People claim that this Courtshould ascertain the nature of any conflict and advise defendant of that conflict and the

risks attendant to it In support of this request, the People rely largely upon out-of-court statements made by efen nts former attorney to members of the media.

t is well-settled that [a] criminal defendants right to counsel includes the right tobe represented by counsel of hisown choosing People v Stevenson, 36 A.D.3d 634,

634, 831 N.Y.S2d 74, lv denied 8 N.Y .3d 927, 834 NYS2c1 518, 866 N.E2d 464;People v Arroyave, 49 N.Y.2d 264, 285-286, 425 N.Y.S.2d 282, 401 N.E2d 3930.

While this right is not absolute, m individuals right to select an attorney who hebelieves is most capable of providing competent representation implicates both the First

Amendment guarantees of freedom of association and the Sixth Amendment right tocounsel Matter ofAbrams [John Anonymous], 62 N.Y2d 183 96 476 N.Y.S.2d 494,

465 N.E2d I [citations omitted]; People v Limongelli 156 A.D.2d 473, 474, 548N.Y.S.2d 759, appeal denied 76 N.Y.2d 894, 561 NY.S.2d 557, 562 N.E.2d 882. As

recognized by the Court of Appeals:The constitutional guarantee ensuring the right of adefendant to be represented at trial by counsel of his ownchoosing serves many critical needs. Paramount amongthese considerations is the need for a defendant to be willingto confide freely and fully in his attorney so that the channelsof communication and advice between counsel and his clientmay remain free-flowing and unobstructed. Mutua l cooperation between defendant and counsel is often times acritical prerequisite to effective legal representation, and anatmosphere of trust and respect can best be obtained if adefendants choice of counsel is honored Arroyave 49N.Y.2d at 285-286.

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Juxtaposed to this right is an individu als righ t to the effective assistance ofcunsI without compromise by a potential or actual conflic t of interest Limongelli, 156A.D2d at 474; see also Matter ofAbrams John Anonymous], 62 N.Y.2d at 197.Effective assistance of counsel is representation that is reasonably competent, conflict-free and singlemindedly devoted to the clients best interests People V DiPippo, 82A.D.3d 786, 789, 918 N,Y.S.2d 13 6, lv. denied 17 N.Y.3c1 903, 933 NY S2d 658, 957NE d 1162. quoting People v. Long tin 92 N.Y.2d 640, 644, 684 N.Y.S.2d 463, 707N.E.2d 418. cert. denied 526 US 1114 , 119 S.Ct. 1760, 143 L.Ed.2d 791 [internalquotations omitted]. This rig ht is impaired when absent a defendants informedconsent, defense counsel represents interests which are actually or potentially inconf lict with those of the defendant People v. Beiroa, 99 N.Y.2d 134 139 , 753N.Y.S,2d 12, 782 N.E.2d 1148 [citations omitted] . A conflict of interest may be basedon defense counsels previous or concurrent representation of a client whose interestsconflicted with those of defendant and cases where defense counsel became a witnessagainst defendant People V Ennis, N.Y 3d 403, 410, 872 N.Y.S.2d 364, 900N.E.2d 925 cert denied 556 U.S. 1240, 129 S.Ct. 2383, 17 3 L.Ed.2d 1301 [citationsomitted]: People vLombardo, 61 N.Y .2d 97 47 N.Y.S.2d 589,460 N.E,2d 1074[attorneys prior representation of prosecution witness]; Gomberg, 38 N.Y2d 307 [joint

representation of defendants].In addition to simultaneous representation of clients with adverse interests or

successive representations, an accusation of wrongdoing on the rt of a defenseattorney, while not automatically requiring disqualification, would create at least a

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potential conflict; when a lawyers own conduct is in question, the lawyer may be

impelled to protect himself at his clients expense People V Townsley, 20 N.Y.3d 294 299-300, 959 N.Y.S.2c1 94, 982 N.E .2d 1227, ert denied Thwrisley v. New Yo,*, 133SCt 1829 185 LEd.2d 840 citing Code of Professional Responsib ility DR 5-1 01 [a] 22NYCRR 1200.0 a ]. Lastly, [c]ourts and commentators have recognized the inherentdangers that arise when a crim inal defendant is represented by a lawyer hired and paidby a third party, particularly when the third party is the operator of the alleged criminalenterprise Wood Georgia, 450 U.S. 261, 268270 101 SCt 109767 Ld2d 220;United States Locascio, 6 F.3d 924, ceit denied 511 U.S. 1070 , 114 S.Ct . 1645, 128L.Ed.2d 365 [proof of house counsel used to establish existence of criminal enterpriseunder RICO] .

In the present case the purported potential conflict of interest does not involve aclaim of simultaneous or su essive representation, or an accusation of wrongdoing onthe part of defendants current attorney. Rather, the claim arises from out-of-court

statements by defendants former attorney regarding alleged conduct of the PutnamCounty District Attorney, and the fact that defendants current attorney is his brothe r inlaw . Defendants current attorney has affi rmed, under penalty of peiury that he is notreceiving any financial compensation for legal fees, experts, investigators, or any otherexpenses to be incurred in his representation of the defendant, from the Putnam

County District Attorney. Counsel further aff irm s that he will no t isuss the

he Rules of Professional Conduct provide as fol low s: UA lawyer shaLl not represent a dient if areasonable lawyer would conclude that there is significant risk that the lawyers professional judgmenton behalf of a client will be advrse1y affected by the lawyers own financial business, property or otherpersonal irlterestaw 22 YRR 1200 0 rule 17[aJ[2fl

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defendants case with the Putnam County Distric t Attorney. As stated by the Court of peis in Gambrg [ijt may properly be assumed that an attorney will not perjurehimself, nor deliberately act in violation of the Code of Professional Responsibility

Gamberg, 38 N.Y.2d at 314.To the extent the People are claiming that a potential conflict arises from the

payment of legal fees by a th ird party other than the Putnam County District Attorney,the Sixth Amendment prohibits government from interfering with financial donations byfamily members, neighbors and friends see United States v Stein, 541 F d 130 155;compare People McCutcheon, 109 A.D.3d 1086 971 N.Y.S.2d 609 [con flict wheredefendants thengirlfriend, who was complainant and key prosecution witness, paid hisattorneys fees].

Historically the courts of the State of New Yo rk have remained vigilant in theirduty to ensure that a defendants right to retain counsel of his own choosing isprotectecf Arroyave, 49 N.Y.2d at 270, and this Court will be no less vigilant itsobligation to respect the selection of counsel made by this defendant see Gomberg, 38NY.2d at 312. Defendants right to counsel of his choosing is not to be lightlyinterfered with see Id. and in the absence of any facts rising to a lev el implicating theconflict of interest concerns, addressed in Gomberg between the defendant and his

current attorney, the People have failed to establish a basis upon which to conduct an

inquiry .

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In the event such a conflict does arise defendants attorney is reminded of hiseThicaIobiigation to disclose to his client at the earliest possible time the existence ofany such con flict ing interests that might cloud his representation Id. at 314.

In this case the Court is aware of extra-judicial statements that have been madeby attorneys and others to the media. However the Court must not and will not permitthese statements to detract from its central focus and the immediate issue at hand;that being its duty to insure the orderly progress of this c se consistent with fairness toboth the People of the State of New York and Alexander Hossu.

The parties are reminded that the trial in this c se is scheduled to commence onMarch 3 2014. In the in terim the Court remains available for any conferences whichthe parties feel are necessary to facilitate the orderly and fair process of this case.

Accordingly is herebyORDERED that the Peoples motion for a Gcmberg inquiry is DENIED.

The foregoing constitutes the Decision and Order of Court.

Dated: White insNewYork

HON. ST B. ADLERSUPREME COURT JUSTICEF-ION. JANET DiFIOREDistrict Attorney Westchester County111 Dr. Martin Luther King Jr. BoulevardWhite Plains New York 10601BY: William C. Milaccio Esq.Assistant District AttorneyMLNTZER SHEINDLIN LLCAttorneys for Defendant

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600 Mamaroneck Avenue Suite 400New York 528

BY: Daniel Mentzer Esq.

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