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The Grievance Committee now moves to confirm the report of the Special Referee


Records reflect that in this first case, in a felony charge, the accused appeared to testify before the Grand Jury without an attorney. Despite the fact that he stated that he could not afford an attorney, he was not afforded the opportunity to apply for legal aid or court-appointed counsel. In the Grand Jury room, he stated that he had not spoken to an attorney about testifying before the Grand Jury, and that he did not know that he had a right to have an attorney in the Grand Jury room after he had signed and sworn to the waiver of immunity. He was then sworn, again signed the waiver, and testified about the incidents in question. He was indicted, charging him with a scheme to defraud in the first degree, grand larceny in the second degree, grand larceny in the third degree (8 counts), and petit larceny (9 counts).

He now moves, for an order pursuant to CPL 210.20 dismissing the indictment on the ground that he had immunity under CPL 190.40 with respect to the offenses charged. He argued that the waiver of immunity executed by him was invalid because his right to counsel had attached at the time he was arraigned on the felony complaint, he signed the waiver in the absence of counsel, and he did not make a knowing and voluntary waiver of that right at the Grand Jury proceedings. The motion was granted and indictment dismissed.

The court held that it is well established in this State that an accuse against whom formal criminal charges have been filed has an indelible right to counsel. Once an accusation is made by the filing of a felony complaint, the matter is in litigation and this “is precisely the juncture at which legal advice is crucial and any discussions relating thereto should be conducted by counsel: at that point the parties are in no position to safeguard their rights”. Moreover, “nice distinctions between the need for counsel at various stages of the proceedings are irrelevant once the right to counsel has indelibly attached”.

In this case, in view of the fact that the criminal proceedings had been commenced and were at a critical stage, he was entitled to counsel. CPL 190.50, provides that a witness who has signed a waiver of immunity has the right to have an attorney present in the Grand Jury room for the purpose of providing advice to the witness. The accused could have effected a valid waiver of his right to counsel before a neutral magistrate and elected to proceed pro se. However, his colloquy before the court reveals that he did not unequivocally, knowingly, and intelligently waive his right to counsel.

In view of the fact that the accused’s Grand Jury testimony was tainted by the denial of his right to counsel, the indictment was properly dismissed. We reject his claim and the County Court’s determination that by virtue of the denial of his right to counsel, the waiver of immunity was ineffective, and, therefore, the accused received transactional immunity from further prosecution. While the accused has a right to have counsel present, the presence of counsel is not required under the pertinent statutory provisions, and an accused should not receive transactional immunity in a case where the waiver of immunity is ineffective for some reason not envisioned by the statute. The criminal statute does not envision that a Grand Jury witness in his position should obtain transactional immunity due to the denial of his right to counsel. Such an accused who voluntarily appears to testify before the Grand Jury and who signs a written waiver of immunity, which is sworn to before the Grand Jury, is not entitled to transactional immunity.

In this second case, sources show that an accused was charged with grand larceny in the third degree. Bail was posted in the amount of $1,000. A lawyer was retained to represent the accused in that matter. Later, accused failed to appear for a scheduled court date. She was indicted and charged with two counts of grand larceny in the third degree and one count of attempted grand larceny in the third degree. Records also show that on several occasions, the accused jumped bail. Her criminal counsel was then served with a petition containing five charges of professional misconduct. After a hearing, the Special Referee sustained all five charges. The Grievance Committee now moves to confirm the report of the Special Referee. The counsel cross-moves to disaffirm the Special Referee’s report.

The court ruled that in view of the counsel’s admissions and the evidence adduced, the Special Referee properly sustained the five charges. The Grievance Committee’s motion to confirm the report of the Special Referee is granted and the cross motion to disaffirm the Special Referee’s Report is denied.

In determining an appropriate measure of discipline to impose, we note the counsel’s prior disciplinary history, which consists of two Admonitions and three Letters of Caution for engaging in conduct prejudicial to the administration of justice, law office failure, failure to fully account for funds on deposit in his attorney trust account, and failure to effectively withdraw from a matter by not taking all steps reasonably practicable to avoid foreseeable prejudice to the client. However, the counsel has recently completed, and earned a certificate for, a course entitled “Business Skills for Attorneys” and has presented numerous letters reflecting on his good works in the community. Under the totality of the circumstances, including the absence of venality, the counsel is censured for his professional misconduct.

Stephen Bilkis & Associates, with offices located throughout New York, the services of its legal team can now be solicited at any convenient time. The firm’s Nassau County Grand Larceny Lawyers and its New York Criminal Attorneys are some of its several legal team who specializes and handle varying types of criminal offenses such as but not limited to crimes of assault, wire fraud, credit card theft.

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