Incompetent Defense Leads To Lengthy Suspension

The New York Appellate Division for the Fourth Judicial Department found that an attorney had incompetently represented a DUI client

Respondent admits that, in July 2012, the client was in the custody of two sheriff’s deputies and made certain statements to the deputies that were recorded by a body camera worn by one of the deputies. Respondent admits that the prosecution subsequently alleged that certain of those statements constituted threats against the deputies and, on at least two occasions thereafter, the prosecution provided respondent with a DVD containing a video recording that depicted the alleged threats. Respondent also admits that the video recording was received into evidence in one of the criminal proceedings in which respondent represented the client. Respondent admits that, although he subsequently moved the trial court for an order suppressing the alleged threats, he failed to view the video recording prior to making the motion or prior to the Huntley hearing. The Referee found that respondent called his client as a witness at the Huntley hearing without advising the client as to the existence of the video recording and, on direct examination, the client testified that he had not made the alleged threats to the deputies and that the deputies had failed to advise him of his Miranda rights. On cross-examination by the prosecutor, the client again denied that he had made the alleged threats. Respondent admits that, had he viewed the body camera video recording prior to the Huntley hearing, he would have known that one of the deputies had issued Miranda warnings to the client and that the client had made the alleged threats to the deputies. He also would have known that the client had made the alleged threats because he was unable to make bail, rather than as a consequence of questioning or prompting by law enforcement. Respondent further admits that the record of the Huntley hearing indicates that he mistakenly believed that the prosecution was obligated to establish the voluntariness of the client’s statements by only a preponderance of the evidence, rather than beyond a reasonable doubt. In addition, in cross-examining a witness for the prosecution, respondent questioned only the ability of the witness to identify respondent’s client as the perpetrator of the alleged criminal conduct and did not ask questions concerning the voluntariness of the client’s statements to law enforcement. Respondent admits that the client was charged with perjury based on the client’s testimony at the Huntley hearing and was thereafter convicted, upon a jury verdict, of two counts of perjury in the first degree. Although the client was sentenced to a term of incarceration on the perjury conviction, that term was to run concurrently with a longer term of incarceration that was imposed for certain other criminal conduct of the client.

The attorney incompetently handled a second criminal matter and had a record of prior discipline.

He was suspended for two years and until further court order. (Mike Frisch)