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Both defendants moved to exclude any evidence of prior convictions of the defendants

In a criminal case, the chief point urged on appeal by defendant is that the court had previously accepted a plea of guilty to the lesser crime of attempted criminal possession of a dangerous drug in the fourth degree, a Class E felony, to cover the entire indictment; that thereafter, the court unilaterally set aside that plea and directed a trial upon which the defendants were convicted of the Class C felony for which they were indicted and for which they have now been sentenced. In essence this is a claim of double jeopardy.

A Bronx County Criminal attorney said that, in court’s view, the fair meaning of the proceedings that took place at the time of the vacating of the plea to the Class E felony was that the defendant applied to withdraw his plea of guilty and the court granted that application, and this was the understanding of all at the time.

While the court are here discussing the defendant, some light is cast on the matter by the proceedings with respect to the co-defendant whose case is in almost all respects identical with the case; most of the proceedings were joint proceedings, including the original plea and the trial. The only difference is that second case’s attorney explicitly moved to withdraw the plea in so many words while the defendant in the first case’s attorney did not use those precise words. But the entire proceedings make it clear that that is what the defendant was doing.
The suppression hearing was in progress when the defendants withdrew their motion to suppress and asked to withdraw their plea of not guilty to the indictment and to enter a plea of guilty to the Class E felony of attempted possession of a dangerous drug in the fourth degree. The district attorney stated that he would recommend a sentence of one year in prison for each defendant. The district attorney stated that if the court did not follow the recommendation of the People, the People would have no objections to defendants’ withdrawing their pleas.

After consultation between defendant in the first case and his attorney, the defendant made the following unusually explicit statement:“THE DEFENDANT: I’ll take my plea back on the day of sentence if you don’t go along with the recommendation.
THE COURT: All right, I’ll let you withdraw your plea if I don’t go along with the recommendation.

At the time for sentence on the plea, the court, having considered the probation report, decided that he would not follow the district attorney’s recommendation for a one year sentence. The sentence of the co-defendant up first and the court immediately stated that he could not go along with the recommendation and that the co-defendant would be permitted to withdraw his plea of guilty. After some further discussion, the co-defendant’s attorney explicitly stated, ‘the defendant then desires to withdraw his plea of guilty and proceed’ and he also withdrew the previous withdrawal of the motion to suppress.

On the same day the proceedings with respect to the defendant took place. Again the court stated that he could not go along with the one year recommendation and stated that he had said at the time the plea was entered that if he could not do so with respect to this defendant, ‘the court would permit him to withdraw his plea. The court then stated some things about the probation report and then said: ‘Based on all of these circumstances this court at this time will entertain a motion by counsel to withdraw his plea of guilty and to reinstate his plea of not guilty and set a date for trial.’ Davis’ attorney then stated that there had been some discussion of commitment of the defendant to NACC (Narcotic Addiction Control Commission) and made a plea that the court should sentence the defendant to NACC.

It is apparent that the court thought that the defendant was moving to withdraw his plea and not that the court was acting unilaterally. The notation made at the time on the back of the indictment by the clerk and signed by the judge .

The judge was justified in interpreting defendant Davis’ attorney’s remarks as withdrawal of the plea. Having asked that the defendant be committed to NACC, the attorney said, ‘if not Judge, I’m going to request that the minutes, the hearing be held de novo.’ This was a reference, of course, to the suppression minutes and hearing. There would be no point to starting a new suppression hearing if defendant’s plea of guilty still stood.

The judge said that he was granting ‘the application to withdraw the plea of guilty.’ ‘Notably, the attorneys did not object or move to correct the record.’ Instead, defendant’s attorney asked that the case proceed immediately. A major purpose of requiring a party to make known his objection to an action by the court is so that the court shall have ‘an opportunity of effectively changing the same. If the defendant’s attorney at that point had thought and said that he had not made an application to withdraw the plea of guilty, there can be no doubt that the court would have required him to say whether he was or was not moving to withdraw the plea. Defendant’s attorney did not suggest in any way to the court that the court’s interpretation was incorrect. But now appellate counsel reading the cold record urges us to interpret what took place in a way different from what the parties understood at the time.

If the court had unilaterally and improperly purported to set aside a plea of guilty, the defendant would have had a of previous prosecution to any further proceedings which would be the subject matter of a motion in the trial court to dismiss the indictment. ‘The jeopardy claim, amounting to a collateral attack upon the prosecution, is treated in the CPL as a contention to be advanced upon a pre-trial motion to dismiss the indictment. Defendant neither moved to dismiss nor instituted an Article 78 proceeding.

Plainly, rather than be sentenced to something more than one year imprisonment, defendant chose to gamble on a trial. His attorney said so explicitly at the time of sentence after the conviction, referring to the plea of not guilty as a ‘gamble’ with the ‘odds’ changed by the hearing testimony so as to make ‘the entry into the gamble far more attractive.’ The ‘entry into the gamble’ After the hearing testimony could only refer to the withdrawal of the plea of guilty.
Having lost the gamble despite the attractiveness of the odds, defendant through his appellate counsel has nothing to lose by urging that the gamble should be disregarded and that he should be reinstated to the position before he chose to gamble. In this respect, the situation is quite similar in a case where the court held: ‘Now that the issue has been resolved against the defense, appellate counsel–who represents by assignment of this court and who has undertaken his task with ability and imagination–may, with complete safety to appellant, speculate at length upon a whole series of hypotheses It is, of course, understandable why trial counsel did not argue in that way upon the trial before the case was submitted to the jury. And we suspect that the defendants would have been quite dismayed, while the verdict was still in doubt.

Both defendants moved to exclude any evidence of prior convictions of the defendants on cross-examination if the defendants testified. The court denied the motions and both defendants urged error.

The case was tried before the decision of the Court of Appeals which ‘sets some boundaries to the scope of cross-examination permitted in the past.

The Court thinks that the court exercised and did not abuse its discretion and that a reversal is not warranted. Defendant Davis had what the court at sentence called ‘an extensive criminal background.’ These crimes, as brought out in connection with the motion, included assault and robbery, a grand larceny automobile arrest which had apparently resulted in a felony conviction for which he served time in state prison, possession of drugs, resisting arrest, and criminal sale of dangerous drugs.

Although the trial judge obviously did not have the benefit of the Court of Appeals’ decision in a case, rendered a year after trial, it is plain that he did exercise discretion. He discussed the considerations each way that bear on cross-examination of a defendant as to prior convictions. He inquired as to the specific crimes of which the defendants had been convicted. And the explicitly stated that his ruling did not go beyond what he understood the crimes to be.

Plainly, the crimes did reveal ‘a willingness or disposition on the part of the particular defendant voluntarily to place the advancement of his individual self-interest ahead of principle or of the interests of society. Plainly, the robbery and auto charges were ‘crimes or acts of individual dishonesty, or untrustworthiness which the Court of Appeals recognized ‘will usually have a very material relevance, whenever committed.

The defendants, instead of informing the court of their prior convictions and misconduct, actually misrepresented the extent of their prior convictions and misconduct, apparently even to their own lawyers. It was the district attorney who had to point out that the lawyers were wrong in saying there were no crimes of moral turpitude and only drug offenses.

The court do not think either that the trial court abused its discretion or that the defendants met their burden of demonstrating that the prejudicial effect of admission ‘of evidence thereof for impeachment purposes would so far outweigh the probative worth of such evidence on the issue of credibility as to warrant its exclusion.

In the second case, the major contention here by the defendant relates to the denial of the motion to exclude cross-examination as to prior convictions. The discussion of this point with respect to defendant sufficiently covers the matter. The court add only that in the second case, the previous crimes in addition to drug charges included a grand larceny auto charge for which he received a reformatory sentence and a youthful offender adjudication for what would otherwise have been a conviction for assault in the third degree arising out of an alleged forcible sodomy. There was also a charge of possession of a dangerous weapon, as to which the district attorney did not know whether there had been a conviction and the defendant did not enlighten the court.

The defendant, formerly an attorney, was charged with four counts of Grand Larceny in the Third Degree, one count each of Grand Larceny in the Fourth Degree, Petit Larceny, Scheme to Defraud in the First Degree, and nine counts of Practice of Law by Disbarred or Suspended Attorney. In essence, the allegations are that the defendant stole money from several clients and another person, both before and after she was suspended from the practice of law. Before any of these charges were brought against the defendant, the Disciplinary Committee for the First Judicial Department began an investigation into several of these matters, which later became the subject of some of the criminal charges she is facing.

After complaints were filed against her, and before she was suspended from the practice of law, the defendant testified in a hearing conducted on behalf of the Disciplinary Committee on November 16, 2006, February 21, 2007, March 13, 2008, and November 23, 2009, the first three times without an attorney, and on the final occasion, with one. At the beginning of the first appearance, an attorney for the Committee informed the defendant that she was appearing voluntarily, that she was entitled to have counsel with her, and that the proceedings would be adjourned any time she requested counsel.

The defendant woman was informed that it is a civil proceeding and if she should assert her Fifth Amendment privilege, the Committee attorney informed her that she can make an adverse inference. By statute and case law the defendant is required to answer questions even though she might at some point raise an objection to they’re being entered into evidence should it come to that. But she does have to answer.

Finally, the Committee attorney informed her that the proceeding is confidential pursuant to Section 90.10 of the judiciary law. The Committee attorney gave the defendant similar admonitions when she testified on March 13, 2008.

On all four occasions that the defendant appeared she answered the questions put to her. On November 16, 2006 and March 13, 2008 — the two occasions in which the defendant was given the admonitions set forth above — she was asked whether the money that the complainant woman had given to her for the down payment on the purchase of property was still in her escrow account. Both time she testified that the money was still there.

Based on banking records, the State allege that this testimony was false, a fact which the defendant does not now contest. The State assert that in this criminal case, in which the defendant is charged with, stealing money from the complainant woman, the falsity of that testimony evidences a consciousness of guilt. Accordingly, they asked permission to offer those portions of the defendant’s hearing testimony at the trial. In a motion in limine, the defendant objected to the admission of the testimony, claiming that the adverse inference that would have been applicable had she asserted her right against self-incrimination rendered her answers compelled within the meaning of the Fifth Amendment. After hearing argument and receiving written submissions from both sides, the court finds the testimony admissible.

The admonitions that the defendant received were, without doubt, poorly phrased. As quoted above, she was first told that she had a Fifth Amendment right not to testify, albeit with the possible consequence of the drawing of an adverse inference in the hearing. She was then told that she was required to answer questions but that her testimony would be confidential. She was not informed that if she answered questions, they might be offered in evidence against her in a subsequent criminal proceeding. Nevertheless, she does not now claim that by being required to answer questions she believed she would be compelled to answer them even had she asserted her Fifth Amendment privilege. Nor does she claim that she believed the promise of confidentiality meant her answers could not be offered against her in any subsequent criminal proceedings.

The defendant also does not assert that if she had been specifically informed of the possibility of their use in a subsequent criminal proceeding she would have asserted the privilege. In any case, such a claim would have been unavailing. The defendants in a prior civil proceeding asserted the Fifth Amendment privilege as to some questions put to them, but made statements is response to others, and those statements were later offered in evidence against them in a criminal prosecution. The defendants argued that the statements were inadmissible because they would have asserted the privilege in the civil proceeding had they known they would be later prosecuted. The Court rejected the claim, reasoning that since they could have invoked the privilege with respect to those questions they did answer, they could not rely upon what information they did disclose to establish prejudice.

The sole ground upon which the defendant does claim that she was compelled to testify at the disciplinary hearing is by the prospect of the adverse inference that could have been drawn against her in that proceeding had she invoked her privilege against self-incrimination. In support of her claim, the defendant cites a similar case where the court precluded the State from offering against the defendant statements he made to a certified social worker, which the Court held were privileged. The defendant does not claim such a privilege applied to her testimony in this case, and none did.

The court held that, just as in a criminal case where the defendant’s statements at a hearing on a motion to suppress are not admissible if offered by the State in their direct case, likewise the defendant’s civil case statements in a pro se lawsuit alleging constitutional violations ought not be introduced against him at a criminal trial on related issues.

The Supreme Court also held that when a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt unless he makes no objection. As the Supreme Court and numerous other courts have made clear, however, the Fifth Amendment applies quite differently to testimony given in a civil proceeding.

Furthermore, a person may not suffer any penalty in a criminal case for exercise of her Fifth Amendment right to silence, and that this prohibition is not restricted to fine or imprisonment, but extends to the imposition of any sanction which makes assertion of the Fifth Amendment privilege costly.

As the State correctly observes, however, the assertion of the right against self-incrimination in an attorney’s disciplinary proceeding in New York is no longer by itself sufficient to justify the attorney’s suspension or disbarment. Instead, it may result only in the drawing of an adverse inference, which may be considered along with other evidence of misconduct in determining whether to suspend or disbar the attorney. Moreover, such action may be taken only in conjunction with other misconduct which, together form a basis for uncontested evidence of professional misconduct. In other words, merely invoking one’s Fifth Amendment right against self-incrimination should not serve as a separate ground for an interim suspension.

An earlier decision in which the Court held the answers to interrogatories submitted to a corporation and given by the defendant, one of its vice-presidents, could be used against him in a subsequent criminal prosecution. Had no one answered the interrogatories on behalf of the corporation, the government could have seized certain products it manufactured. Nonetheless, the Court reasoned that because the defendant could have invoked his Fifth Amendment privilege against compulsory self-incrimination rather than answer the interrogatories, he was not compelled to give testimony against himself even if the information the defendant supplied the Government in his answers to the interrogatories, if not necessary to the proof of the Government’s case in the criminal prosecution, at least provided evidence or leads useful to the Government.

If a person forgoes her Fifth Amendment privilege in a civil matter and makes statements, even a disciplinary hearing like this one, in which an adverse inference may be drawn from the assertion of the privilege against self-incrimination, a prosecutor can offer those statements in evidence against her in a subsequent criminal case. Other courts have explicitly said so. For example, a physician accused of writing illegal prescriptions sought to suspend disciplinary proceedings against him until pending criminal charges were resolved. The First Circuit held that the Fifth Amendment did not prohibit the board conducting the proceedings from drawing an adverse inference should the physician refuse to testify. The Court concluded that there was nothing inherently repugnant to due process in requiring the doctor to choose between giving testimony at the disciplinary hearing, a course that may help the criminal prosecutors, and keeping silent, a course that may lead to the loss of his license.

Similarly, in this case, had the defendant exercised her right to silence in the disciplinary proceeding, her silence could have been considered, along with other evidence, in determining whether she should be suspended from the practice of law. Had she done so, her assertion of that right could not, of course, have been offered in evidence against her in this trial. However, she chose instead to testify, and because that choice was voluntary and not compelled within the meaning of the Fifth Amendment, her testimony is admissible against her in this criminal case.

Finally, the defendant asserts that the hearing testimony should not be admitted because its probative value is outweighed by the prejudice it would cause her, in particular because her motivation in testifying falsely at the hearing was her fear of suspension and disbarment, which could be based solely on the violation of the disciplinary rules committed by her removal of the funds from the escrow account, regardless of whether she stole those funds. This argument is also without merit. First, evidence that the money was removed from the account is admissible to establish that she stole it, regardless of whether her hearing testimony to the contrary is admitted at trial. Second, while defense counsel may argue to the jury that her motive in giving the false testimony was solely to prevent her suspension (and, of course, the defendant, if she wishes, may so testify), the jury is entitled to consider that her false testimony was evidence of her consciousness of guilt of the alleged theft.

Observing that the court has always recognized the ambiguity of evidence of flight and insisted that the jury be closely instructed as to its weakness as an indication of guilt of the crime charged, and noting that such a charge had been given the Court upheld the defendant’s conviction. Here, too, although the defendant may have had another motive for testifying falsely, it is nonetheless relevant as evidence of consciousness of guilt, and the jury will receive the appropriate instruction concerning the weakness of such evidence.

For these reasons, the State’s application to permit admission of the relevant portions of that testimony was granted and the defendant’s in limine motion to preclude their admission was denied.

More is expected from persons of the law. However, if they do commit a crime, they are still entitled to a fair trial. If you are being accused of violating the law, the Bronx County Criminal Attorney together with the Bronx County Grand Larceny Lawyer can argue for you in court.

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