People v. Stewart , 656 N.Y.S.2d 210 ( 1997 )

OPINION OF THE COURT

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 NY2d 182, 186). In fact, CPL 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). 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 AD2d 294).

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 [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 CPL 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]-|j]) rather "present, as a matter of legislative policy, a broad range of considerations basically unrelated to guilt or innocence” (Preiser, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11 A, CPL 210.40, at 703 [emphasis supplied]).

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 Mise 2d, supra, at 782.) 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 paragraphs (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), 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 NY2d 62). "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” (supra, at 70). Even if they were, moreover, public policy considerations might in some circumstances still require disclosure (supra, at 70-71; Matter of Jacqueline F., 47 NY2d 215). 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, 10 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 NY2d 286); it seems that the motion court concedes the extent of the harm caused but concludes that defendant is not "totally accountable” (158 Mise 2d, supra, at 782) 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 public confidence in the criminal justice system; and (h) the impact of the dismissal upon the safety of the community would be adverse in that it would serve to perpetuate similar layerings of knowledge in similar situations.

Factor (d) is "the history, character and condition of the defendant.” There is nothing in her history, character, or condition which would militate for or against the dismissal of the indictment. Factor (i), the attitude of the complainant, and factor (j), any indication that a judgment of conviction would serve no purpose, would seem not to come into play.

All in all, examining and considering the factors set out in CPL 210.40 (1), as we must, there has been no indication of "the existence of some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant * * * would constitute or result in injustice” (CPL 210.40 [1]; emphasis supplied). What has been clearly demonstrated is that the offense with which defendant is charged is a serious and harmful one and that the criteria prescribed in CPL 210.40 (1) indicate that dismissal in furtherance of justice is inappropriate.

The argument that the People’s seeking a contempt indictment from the same Grand Jury before which Stewart had refused to testify was improper is without merit. Another Grand Jury would have had access to a transcript showing what this Grand Jury, instead, had observed. Either way, the essential fact, Stewart’s refusal to testify, would have been shown (see, Langella v Commissioner of Corrections, State of N. Y., 413 F Supp 1214, 1219 [SD NY], affd 545 F2d 818 [2d Cir], cert denied 430 US 983).

If she is convicted of the felony of criminal contempt, defendant will be automatically disbarred (Judiciary Law § 90 [4] [a]). This is a consequence she understood when she refused to testify, a consequence she was reminded of by the prosecutor. Laypersons who commit felonies suffer the consequences. Lawyers who commit felonies should not be allowed to avoid the consequences, even though they include disbarment. This Court has recognized that there may be unusual circumstances under which a mandated sentence may be so disproportionate to culpability as to support dismissal pursuant to CPL 210.40 (see, People v Cruz, 114 AD2d 769, 771). Mandated collateral consequences of a conviction could, it would seem, similarly justify dismissal. The focus on the administrative consequences to defendant in the instant case, however, must not be allowed to obscure the interest of the State (see, People v Naik, 139 AD2d 535). In People v Cruz (supra), this Court found that the conclusion was almost inescapable that defendant was a habitual criminal and that dismissal of any count to avoid the prescribed sentence was improper. In the instant case, defendant insists, in effect, that Matter of Priest v Hennessy (supra) does not apply to her; the consequences of her silence preclude the dismissal of the indictment.

The memorandum of the New York State Association of Criminal Defense Lawyers, appearing as amicus curiae, stresses the argument that defendant’s course of action was proper. We are concerned, however, with CPL 210.40 (1) and criteria (a) through (j) therein, which, as has been observed, "present, as a matter of legislative policy, a broad range of considerations basically unrelated to guilt or innocence” (Preiser, op. cit.; emphasis supplied). Only factor (c) refers to the evidence of guilt. Since there is no showing that this is the " 'rare’ ” and " 'unusual’ ” case crying out for " 'fundamental justice beyond the confines of conventional considerations [citations omitted]’ ” (People v Insignares, 109 AD2d 221, 234, lv denied 65 NY2d 928), defendant’s guilt or innocence should be decided after a trial. There is an incongruity in arguing the question of guilt or innocence at such length in an attempt to avoid the process which determines guilt or innocence. "Before the function of the jury, the Judge and the very trial itself is supplanted, an overriding moral issue must be present so as to utilize this extraordinary procedure requested herein” (People v Stern, 83 Misc 2d 935, 940). The overriding moral issue here supports the position of the People.

What defendant seeks here is analogous to what was sought by the defendant in People v Stein (85 Misc 2d 1081 [Sup Ct, Suffolk County]) 21 years ago. Stein, a student at the State University at Stony Brook, had received and opened a package mailed from Nepal and under surveillance since it entered the country. It contained marihuana and opium. Testifying that he had not ordered the package, was unaware of its contents, never intended to exercise dominion and control over it, and had opened it only out of curiosity, he moved for dismissal in the interests of justice. The court observed that Stein might indeed be able to establish his innocence but that he had not met the standards of People v Clayton (41 AD2d 204) and that "[t]he defendant really seeks summary judgment in this criminal matter through the vehicle of a motion for dismissal in the interests of justice. No such remedy is available to him.” (People v Stein, supra, at 1082-1083.) Similarly, no "summary judgment” dismissing the indictment is available to defendant in the instant case, whether or not she may be able to avoid conviction otherwise. Indeed, it would seem that the dissent was dictated by an attempt to secure summary judgment and to "deny to the People the opportunity to offer their proof’ (supra, at 1082).

The motion court, in referring to the criteria of CPL 210.40 (1), relied on (d), the history and character of the defendant; on (f), the purpose and effect, including the catastrophic collateral effect of disbarment, of imposing the authorized sentence on defendant; and on (j)> the utilization of the same Grand Jury, as indicating that a judgment of conviction would serve no useful purpose. The State’s purpose in imposing the authorized sentence, however, is to induce people not to refuse to answer questions. As indicated above, the State has a legitimate purpose in doing so. The motion court’s conclusion that the utilization of the same Grand Jury indicates that a judgment of conviction would serve no useful purpose pursuant to factor (j) is without justification or logic. Thus, all that is left not favoring reversal here is criterion (d), her history, character, and condition. That factor does not of itself satisfy the requirement of CPL 210.40 (1) for "some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant * * * would constitute or result in injustice” (compare, People v Colon, 86 NY2d 861).

The dissent recognizes that the court’s power to dismiss in furtherance of justice is "now exercised pursuant to statute” but emphasizes that that power has long been recognized by the common law and fails to examine the criteria of CPL 210.40 (1), contrary to the dictates of People v Colon (supra). Instead, it goes on to recite factual accounts which have little if anything to do with the statutory scheme; to challenge the discretion of the prosecutor; to trace the appellate history of earlier motions in the case even if only tenuously related; to argue the inherent illegality of the procedure of using "shadow counsel” and the impropriety of the subpoena itself; and to disparage Maldonado’s fears.

Though highly critical of the prosecution and the Supreme Court and expressing concern about Maldonado’s right to counsel, the dissent offers no alternative to the concealment of the new counsel for the purpose of allaying Maldonado’s expressed fears of retribution from Lincoln and preventing such retribution. The Grand Jury subpoena, though seeking testimony and documentation with respect to the payment of defendant’s fees for defending Maldonado, was clearly aimed at Lincoln and not Maldonado. The dissent, nevertheless, in its condemnation of secret counsel, would hinder the ability of the People to protect possible witnesses and to investigate and expose possibly criminal participation by attorneys in furtherance of the drug trade.

In any event, this issue is not one properly before us. If defendant is aggrieved by the "manner” in which the prior appeal was decided, she can move to vacate any order or judgment obtained by fraud or misrepresentation. "Courts traditionally have inherent power to vacate orders and judgments obtained by fraud or misrepresentation. In this State, that power has been exercised in civil cases (Furman v Furman, 153 NY 309; Matter of Holden, 271 NY 212) and criminal cases (Matter of Lyons v Goldstein, 290 NY 19)” (Matter of Lockett v Juviler, 65 NY2d 182, 186, supra). Defendant can raise the issue in her trial and if not vindicated by a trier of the facts can move pursuant to CPL 440.10 to vacate that judgment. In fact, accepting the facts as given by the dissent as true, there appears to be no reason defendant cannot move pursuant to that section with respect to the prior judgment affirmed by us. Thus, CPL 440.10 (1) reads, in pertinent part: "At any time after the entry of a judgment, the court in which it was entered may, upon motion of the defendant, vacate such judgment upon the ground that * * * (b) The judgment was procured by duress, misrepresentation or fraud on the part of the court or a prosecutor or a person acting for or in behalf of a court or a prosecutor”.

Likewise, CPLR 5015 (a) (3) provides that: "The court which rendered a judgment or order may relieve a party from it upon such terms as may be just * * * upon the ground of * * * fraud, misrepresentation, or other misconduct of an adverse party”.

Had defendant moved in such a manner, the People would have the opportunity to be heard, especially the allegations dehors the record relied upon by the dissent, and to contest its unilateral fact-finding. The dissent accuses us of dispensing with the consideration of factor (e) in CPL 210.40 (1), "any exceptionally serious misconduct of law enforcement personnel in the * * * prosecution of the defendant.” The dissent attacks the use of shadow counsel, the ethics of the prosecution and the court in obtaining and using such counsel. However, the dissent conveniently does not cite to one case which makes the use of "shadow counsel” illegal or a breach of ethics. We will not, as does the dissent, so cavalierly castigate the prosecutor and the court for attempting to discover the inner workings of a drug ring and protect an informer. We will not rely solely upon speculation and surmise, outside the record, to issue a holding. Once again, we reiterate, this is not the function of the statute now before us, which allows dismissals in furtherance of justice, and we refer to the cases cited above where the Court of Appeals has reversed the application of this statute to cases which did not fit within the statutory framework of CPL 210.40. This is such a case.

While we will not respond in kind to the dissents addendum, we must note that, in over 50 pages, the dissent charges this Bench with cooperating in the alleged "derogation” of ethics engaged in by the narcotics prosecutor, and accuses us of using the criteria of CPL 210.40 as a "blind” to screen from view aspects of the record which are "highly disquieting.”

Judge Cardozo observed many years ago that "A Judge is not a knight-errant, roaming at will in pursuit of his (or her) own ideal of beauty or of goodness” (Cardozo, The Nature of the Judicial Process, reprinted in Selected Writings of Benjamin Nathan Cardozo, at 164 [Hall ed 1947]). The dissent, however, instead of focusing and dealing with the issue before us, takes up and deals with other issues, fascinating, no doubt, but not before us.

Finally, our disagreement with the motion court is only with respect to its application of the statutory criteria for dismissal of the indictment in the furtherance of justice. That we disagree with the motion court in this regard in no way affects our respect for its courage, integrity and intellectual prowess. In fact, the dissent would have done well to have simply relied upon the motion court’s opinion.

Accordingly, the order of the Supreme Court, New York County (Richard T. Andrias, J.), entered on or about May 18, 1993, which granted defendant’s motion to dismiss the indictment in furtherance of justice, should be reversed, on the law and on the facts, the motion denied, and the indictment reinstated.