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In re Application of Brown

New York Supreme Court Appellate Division-Second Department

November 19, 2010



Preliminary Statement

Respondent Joel L. Blumenfeld, Acting Justice, Supreme Court of the State of New York, submits this memorandum of law in opposition to the petition by Richard A. Brown, District Attorney of Queens County, for a writ of prohibition seeking to enjoin Judge Blumenfeld, pursuant to CPLR Article 78, regarding a suppression motion pending before him in People v. Perez, Queens County Indictment Number 1202/09.*fn2

Factual Background

The facts relevant to this proceeding, which are largely not in dispute, appear in the Verified Petition, the Affirmation of Mark F. Pomerantz, and the exhibits thereto.*fn3

The Parties

Petitioner Richard A. Brown is the District Attorney of Queens County (the "District Attorney"). (Pet. ¶ 3.) He is prosecuting the underlying criminal proceeding at issue on this petition, People of the State of New York v. Elisaul Perez, Queens County Indictment Number 1202/09.

Respondent Joel L. Blumenfeld is a Criminal Court Judge and Acting Supreme Court Justice. Judge Blumenfeld is the presiding judge in Part K-23, Supreme Court, Queens County, where the People v. Perez action is currently pending.

Respondent Elisaul Perez is the defendant in the People v. Perez proceeding pending before Judge Blumenfeld.

Perez's Arrest and Post-Miranda Statements

On March 13, 2009, NYPD officers arrested Elisaul Perez for an alleged robbery of an iPod. They took him to the 110th Precinct in Queens County, where Police Officer Edgar Gomez gave Perez Miranda warnings in both English and Spanish. (Ex. A at 7.) *fn4 At the precinct, Perez made the following statement in Spanish: "I fought with the person on the street, and I punched him in the face, and his iPod fell down, and blood from the gentleman's head fell on [my] sneakers." (Id.)

Perez later put his statement into writing, in Spanish. (Id.) Translated, it reads as follows:

I am writing for this so I can get out of this problem I had and the truth is I never wanted to harm anyone and I have never before been jailed in a jail but some time ago someone gave me a beating and left me unconscious and back then I was unable to do anything but then again I found this same person and I fought with him and caused him to bleed a little and blood fell on my sneakers and when I was leaving [unintelligible] and his ipo [sic] fell and I picked it up but I did not take it by force or anything like that I only kept it so that another person would not take it but he made it worse for me and I only tried to make him understand that I did not want to hurt him or anyone else. (Id. at 7--8.)

Perez's Central Booking Queens Interview

On May 14, 2009, prior to arraignment, Perez was interviewed at Central Booking Queens ("CBQ") by a detective and two attorneys from the District Attorney's Office. Perez's interview was conducted pursuant to District Attorney's CBQ Interview Program. (Id. at 8, 14.)

As explained by the District Attorney, under the CBQ Interview Program, which was initiated in 2007, videotaped interviews of individuals awaiting arraignment on felony charges are conducted by investigators from [the District Attorney's] office or by assistant district attorneys in a room in the Central Booking facility in Kew Gardens. The entire interview is videotaped from beginning to end-and the defendant decides whether to speak to [the District Attorney's Office] knowing that the interview is being videotaped. A copy of the videotape is given to defense counsel at arraignment. (Ex. F at ¶ 4.)

The CBQ interview "begins with a standard script, the Miranda warnings, then questions and answers." People v. Ferreira, No. N10208/09, at 5 (Sup. Ct. Queens Cnty. Dec. 17, 2009) (Grosso, J.) (Ex. BB at 5.) As another Queens County Supreme Court Justice has noted, "[i]n the cases [he] ha[s] heard, most arrestees are brought for the CBQ interview between 18--20 hours after arrest." Id.

In Perez's case, he was brought for his interview approximately 14 hours after his arrest. (Ex. E.) Detective Sergeant Mary Picone, reading from the "standard script," began the interview by introducing herself, two assistant district attorneys who were present, and the interpreter. She informed Perez that there were robbery and criminal possession of stolen property charges "pending" against him as the result of an incident that took place on March 13, 2009, at 12:21 a.m., at 9217 53rd Avenue in Queens County. She told Perez that "in a few minutes" he will be read his rights, and after that he would be "given an opportunity to explain what happened at that date, time, and place." (Id.)

Sergeant Picone then made the following statements to Perez:

If you have an alibi, give us as much information as you can, including the names of any people you were with.

If your version of the events of that day is different from what we have heard, this is your opportunity to tell us your story.

If there is something you would like us to investigate concerning this incident, you must tell us now so we can look into it.

Even if you have already spoken to someone else, you do not have to talk to me.

This will be the only opportunity you will have to talk to me prior to your arraignment on these charges.

This entire interview is being recorded with both video and sound.

I will now read you your rights.

Perez was then read his Miranda rights. (Id.)*fn5

After this introduction, Perez agreed to answer questions. During the ensuing interview, Perez said that he beat the complainant because of a past dispute over a girl. He claimed that he had been hospitalized previously after the complainant had beaten him. Perez also repeated his earlier statement that he did not take the iPod from the complainant, but simply picked it up off the ground after it fell when the complainant ran away. Perez also claimed that he had to defend himself because the complainant was going to hit him with a stone. (Id.)

After his CBQ interview, Perez had counsel appointed to represent him and he was arraigned on a felony complaint that charged him with two counts of robbery in the second degree (Penal Law §§ 160.10(1) and 160.10(2)(a)), and one count of criminal possession of stolen property in the fifth degree (Penal Law § 165.40). (Ex. A at 1.)*fn6

Perez's Motion To Suppress His CBQ Statements

On July 3, 2009, Perez filed an omnibus motion seeking, in part, to suppress statements made at his CBQ interview or, in the alternative, to receive a pre-trial hearing to determine whether the statements were obtained in violation of state or federal law. (Ex. I at 6.) On July 28, 2009, the District Attorney's Office responded to Perez's motion, consenting to a hearing but denying that the defendant's statements were unlawfully obtained. (Ex. J at 3.) On August 17, 2009, Acting Supreme Court Justice James Griffin issued an order directing, inter alia, that a pre-trial hearing be held to determine the voluntariness of defendant's statements. (Ex. K at 3.)

A pre-trial hearing regarding defendant's motion to suppress his CBQ statements and other evidence was held before Judge Blumenfeld on November 19, 2009, December 2, 2009, December 11, 2009, and December 18, 2009. (Ex. A at 2.) At the December 11 hearing, ADA Anjula Garg, who participated in the CBQ interviews of Perez and his co-defendant, testified regarding the admissibility of the CBQ statements. (Ex. L.)

Judge Blumenfeld asked ADA Garg some questions at the December 11 hearing. In particular, he asked ADA Garg what the District Attorney's Office had done to investigate the statements Perez and his co-defendant made during their CBQ interviews, given that "[i]n each of these cases, it is said to the defendant that if there's anything that you want to tell us, you must tell us now and we'll investigate it." (Id. at 159.) With respect to Perez's statement, ADA Garg testified that she "personally didn't investigate it," but that the information from each interview was given to "the assigned assistant [district attorney] to then investigate." (Id. at 161.) ADA Garg testified that she "d[id]n't know" if the assigned assistant had done any investigation regarding Perez. (Id. at 162.)*fn7

Perez's counsel similarly asked ADA Garg if she "d[id] anything to investigate" his client's CBQ statements, noting that Perez "told [her] that he had been injured in the prior spring by being assaulted by the complainant and others in this case." (Id. at 174.) ADA Garg reiterated that she "personally did not." (Id.)*fn8

On January 27, 2010, after the suppression hearing ended, Perez submitted a memorandum in support of his motion to suppress the CBQ statements and other evidence. (Ex. M.) Perez argued that the CBQ interview violated his constitutional rights and that the CBQ Interview Program "violates the Disciplinary Rules," specifically DR 7-104(A)(2), and must be suppressed on that basis as well: "Whether a prosecutor obtains a damaging statement from an accused by bypassing existing counsel, or by exploiting the layperson's temporary uncounseled status in the courthouse before the imminent appointment of counsel, the ethical violation is effectively the same and thus the defendant's video statement must be suppressed." (Id. at 22; see id. at 14--22.)

The People's post-hearing memorandum argued, among other things, that Perez's CBQ interview had not violated any ethical rules, including DR 7-104(A)(2). (Ex. N at 4.) Nothing in the memorandum suggested that Judge Blumenfeld was prohibited from considering ethical issues arising out of the interview or the motion to suppress.

Other Queens County Judges Consider the Legal and Ethical Propriety of the CBQ Interview Program

This case is not the first in which the legal and ethical propriety of the CBQ Interview Program has been raised by the parties or addressed by a court. Starting in the summer of 2009, Judicial Hearing Officer Thomas A. Demakos, the former Chief ADA under two previous Queens County District Attorneys and a former Justice of the Supreme Court, recommended the suppression of a defendant's CBQ statements in five separate opinions. People v. Floyd, No. 3034/08 (July 20, 2009) (Ex. X-1); People v. Ware, No. 1916/08 (July 20, 2009) (Ex. Y-1); People v. Comery, No. 1376/08 (Aug. 4, 2009) (Ex. Z-1); People v. Bonaparte, No. 37/09 (Dec. 2, 2009) (Ex. AA-1); People v. Davis, No. 2512/08 (Apr. 30, 2010) (Ex. CC-1).

In each of these cases, JHO Demakos, after viewing the videotaped interview and conducting a hearing, found that the CBQ procedure violated the defendant's Miranda rights. In his view, "the remarks made prefatory to the issuance of Miranda warnings diluted the effect of issuance to such an extent that the defendant's waiver of his rights cannot be said to have been knowingly and intelligently made." Ware, slip op. at 8 (Ex. Y-1 at 8); see Davis, slip op. at 6 (Ex. CC-1 at 6); Comery, slip op. at 14(Ex. Z-1 at 14); Floyd, slip op. at 7 (Ex. X-1 at 7).

In each of these cases but one (People v. Davis),JHO Demakos also found that the CBQ interview ran afoul of Disciplinary Rule 7-104(A)(2) of the New York Code of Professional Responsibility, which "direct[s] that in representing a client, a lawyer shall not '[g]ive advice to a person who is not represented by a lawyer, other than the advice to secure counsel, if the interests of such person are or have a reasonable possibility of being in conflict with the interests of the lawyer's client.'" Comery, slip op. at 15--16 (Ex. Z-1 at 15--16); Ware, slip op. at 8--9 (Ex. Y-1 at 8--9); see Bonaparte, slip op. at 5 (Ex. AA-1 at 5); Floyd, slip op. at 7--8 (Ex. X-1 at 7--8). He concluded that this ethical violation provided an independent basis to suppress the defendants' CBQ statements. Comery, slip op. at 17 (Ex. Z-1 at 17); Floyd, slip op. at 8(Ex. X-1 at 8); Ware, slip op. at 9 (16-A at 9); see Bonaparte, slip op. at 5 (Ex. AA-1 at 5).

JHO Demakos's recommendations to suppress were initially endorsed by the presiding Supreme Court justices in Ware (Judge Gavrin), Comery (Judge Buchter), and Davis (Judge Hollie). (Ex. Y-2 (Ware);Ex. Z-2 (Comery); Ex. CC-2 (Davis).) After orders to suppress were issued in these cases, however, the District Attorney personally wrote letters to each of the Judges, requesting that they "withdraw [their] decisions adopting Judge Demakos' reports until at least such time as [they] can rule on the issues raised in the reports with the benefit of full and fair argument by all parties to the cases." (Ex. Y-3 (Ware and Comery); see Ex. CC-3 (Davis).) After receiving the District Attorneys' letter, each judge withdrew the decision, ordered further briefing on the legal and ethical issues, and eventually denied suppression of the CBQ statements on both constitutional and ethical grounds. (Exs. Y-4 & Y-5 (Ware); Exs. Z-3 & Z-4 (Comery); Exs. CC-4 & CC-5 (Davis).)

In Comery, although he ultimately denied the defendants' motions to suppress their CBQ statements, Judge Buchter "fe[lt] compelled to register [his] disapproval of the program" and to "note that a like program instituted by the United States Attorney for the Southern District of New York in the 1970s was terminated after several panels of the Second Circuit Court of Appeals expressed their disapproval." Comery, slip op. at 2 (Nov. 10, 2009) (citing United States v. Foley, 735 F.2d 45 (2d Cir. 1984), United States v. Perez, 733 F.2d 1026, 1036 (2d Cir. 1984), and United States v. Duvall, 537 F.2d 15, 23--24 (2d Cir. 1976)) (Ex. Z-4 at 2).*fn9 While finding the CBQ Program, at least under facts of that case, to be "in technical compliance with existing precedent and the disciplinary rules of the Code of Professional Conduct," Judge Buchter expressed the view that the script was "deceptive" and that, through their participation in the CBQ interviews, the District Attorney and his Assistants "fail[ed]" to comply with their "obligation to deal fairly with the accused." Id.

JHO Demakos's two other recommendations to suppress CBQ statements, in Floyd and Bonaparte, were rejected by the presiding Supreme Court judges. (Ex. X-2 (Floyd); Ex. AA-2 (Bonaparte).) While denying the motion to suppress in Floyd, however, Judge Kron made clear that "the practice of the District Attorney's Office to engage in pre-Miranda questioning of a defendant awaiting arraignment is a matter of concern." Floyd, slip op. at 4 (Sept. 9, 2009) (Ex. X-2 at 4). Judge Kron stated that, although he did not find a legal or ethical violation in the case, "[c]ertainly, the detective should have administered Miranda warnings initially since defendants are clearly in custody and the initial script is the functional equivalent of questioning because it is reasonably likely to elicit a response." And Judge Kron advised that "[t]he District Attorney's Office may want to review and reevaluate this process because of its vulnerability to the fact specific challenges it may likely face." Id.

In two other decisions, People v. Ferreira and People v. Taylor, Judge Grosso denied motions to suppress CBQ statements on legal and ethical grounds. (Ex. BB (Ferreira); Ex. DD (Taylor).) Like Judges Buchter and Kron, Judge Grosso expressed reservations about the CBQ Interview Program, noting that similar procedures "have been criticized in the federal courts" and that "[c]courts in this county have been critical of the program, yet no court has held that the program is, per se, constitutionally infirm." Ferreira, slip op. at 5--6 (Dec. 17, 2009) (citing United States v. Duvall, 537 F.2d 15 (2d Cir. 1976)) (Ex. BB at 5--6). Judge Grosso stated that he was "trouble[d] . . . that at a moment in time when all of the 'awesome machinery possessed by the state' confronts an individual, he stands alone and unrepresented." Id. at 6 (quoting People v. Cunningham, 49 N.Y.2d 203 (1980)). This struck Judge Grosso, he stated, as "facially unfair." Id.

Judge Blumenfeld's Prior CBQ Decisions

This case is also not the first time that Judge Blumenfeld has considered a defendant's motion to suppress CBQ statements. In several prior cases, Judge Blumenfeld denied defendants' motions to suppress statements made during their CBQ interviews. People v. McAllister, No. 1106-09 (Oct. 5, 2010); People v. Halliburton, No. 2060/2008 (Mar. 20, 2009); People v. Piercing, No. 2060/2008 (Mar. 20, 2009); People v. Simpson, No. 2060/2008 (Mar. 20, 2009); People v. Suhod, No. 87/2008 (Sept. 26, 2008). Judge Blumenfeld has never granted such a motion.

The District Attorney's Office Raises the Ethics of the CBQ Program with Judge Blumenfeld

As Judge Blumenfeld recounted on the record in the Perez case, after JHO Demakos issued his first CBQ suppression decisions in the summer of 2009, several members of the District Attorney's Office expressed their concerns to him over the ethical issues raised by JHO Demakos and the implications of his ruling. (Ex. P-1 at 10--11; Ex. P-2 at 12.) Judge Blumenfeld noted that these conversations took place "[b]efore [he] ever had this [People v. Perez] case," and he explained that, before hearing from the District Attorney's Office about JHO Demakos's decisions, "[i]t never once occurred to [him] . . . that there was anything ethically improper going on" at CBQ interviews. (Ex. P-1at 10.)

Judge Blumenfeld stated that, after one assistant district attorney expressed her ethical concerns to him, he "suggested" to her that, since JHO Demakos had raised the issue, "maybe [the District Attorney's] office might want to get" an advisory ethics opinion from the New York City Bar or a similar body in order "to allay the anxieties of the people who appeared at these hearings . . . on behalf of [the District Attorney's] office." (Id. at 11.)

"Having simply suggested that," Judge Blumenfeld noted, he "then received a visit the next day from [Assistant District Attorney] Rankin, who was [ADA] Fernandez's supervisor, who was the assistant who asked [him] that, and then the day after that [he] met with [Deputy Executive Assistant District Attorney] Masters and [Senior Executive Assistant District Attorney] Quinn who showed [him] the revised [CBQ] form . . . ." (Id.) As Judge Blumenfeld stated, his "only opinion" to the District Attorney's Office at the time was that he "ha[d] no idea if [the CBQ Program] is ethical or not ethical, but just managing an office, would it be a good idea to get an advisory opinion to protect the people there?" (Id.)

With this as background, when the Perez case was assigned to him, Judge Blumenfeld asked the assistant district attorney then on the case (ADA Schraeter) if he was sure he wanted the court to address the ethics of the defendant's CBQ interview. (Ex. P-2at 12.) As Judge Blumenfeld explained, ADA Schraeter "said, yes," and so "that's why we are we are at now." (Id.) Judge Blumenfeld Requests Professor Yaroshefsky's Expert Ethics Report

In March 2010, "[i]n order to fully understand and address the ethical issues involved in the pre-arraignment interrogation conducted by the Queens District Attorney in CBQ," Judge Blumenfeld, pursuant to Canon 3(B)(6)(b) of the Code of Judicial Conduct, and with notice to both parties, sought the expert advice of Professor Ellen Yaroshefsky, Clinical Professor of Law and Director of the Jacob Burns Center for Ethics in the Practice of Law at Cardozo Law School. (Ex. A at 14--15.)

As Judge Blumenfeld informed the parties, he provided Professor Yaroshefsky "with a copy of the DVD [of Perez's CBQ interview], the DA Interview Form, the transcript of the December 11, 2009 proceeding [i.e., the suppression hearing,] and the part of [the parties'] memoranda of law that pertains to the ethics issue." (Ex. B.) And, "[a]s soon as Professor Yaroshefsky responds," Judge Blumenfeld told the parties that he would "forward that response to [them]." (Id.)

When notified by Judge Blumenfeld that he intended to make this consultation, neither party objected. (See Ex. O at 3--5; Ex. D.) In a letter dated April 5, 2010, Assistant District Attorney Donna Aldea (who had replaced ADA Schraeter as the assigned assistant on Perez) merely requested "'a reasonable opportunity to respond' to Prof. Yaroshefsky's advice, if the People deem this necessary" and reserved the District Attorney's rights "to move to reopen the suppression hearing so that Prof. Yaroshefsky may be called as a witness and subjected to cross-examination, to file a supplemental brief on any legal issues that may be presented by her opinion or testimony, and to have oral argument before [Judge Blumenfeld] prior to [him] issuing a decision on the suppression motion." (Ex. D at 1.)

On April 14, 2010, Professor Yaroshefsky issued a seven-page report opining that the CBQ Interview Program violated Rules 4.3, 4.1, 8.4(c), and 8.4(d) of the New York Rules of Professional Conduct. (Ex. C.) Upon receiving the report (as well as a corrected copy, fixing minor typographical errors, which was received on April 28, 2010) Judge Blumenfeld sent it to the parties and set a schedule for them to respond. (Id.; Ex. A at 14--15.)

The Yaroshefsky report, described unfairly in the District Attorney's brief as "the incendiary and baseless accusations of an activist" (DA Mem. at 40), in fact is a standard opinion letter analyzing the Perez CBQ interview with respect to various ethical rules and opinions of bar ethics committees. (Ex. Cat 1--7.) It also refers to several judicial opinions and the American Bar Association Standards for the Prosecution Function. (Id. at 4--7.) It contains no "incendiary" or scandalous material; it simply parses the facts and ethical authorities and concludes that the Perez interview was improper in several respects: Professor Yaroshefsky opined that the statements and conduct of the questioners implied that they were "disinterested," and "induce[d] the defendant to believe that there is an urgency to speak now when there is no advantage to him doing so prior to the appointment of counsel." (Id. at 4--5.) Further, Yaroshefsky indicated that the questioners misled the defendant to believe "that he must give them any information for investigation now." (Id. at 6.) For these and other reasons, Yaroshefsky opined that the Perez interview, as depicted on videotape, was not appropriate under the professional rules governing lawyers' conduct and the conduct of prosecutors in particular. (Id. at 1--2, 6--7.)

The District Attorney's Motion To Strike the Yaroshefsky Report

Upon reviewing Professor Yaroshefsky's ethics report, the District Attorney moved orally on April 30, 2010 (with a supporting memorandum of law submitted on May 28, 2010) to strike it from the record as "outside the scope of advice that can be considered by this Court under Canon 3(B)(6)(b) of the Code of Judicial Conduct." (Ex. Q at 3; see Ex. P-1 at 2--3.) The District Attorney decided only after receiving the Yaroshefsky report to object to Judge Blumenfeld's consideration whether Perez's CBQ interview violated any rules of professional ethics.*fn10

While the District Attorney acknowledged that Professor Yaroshefsky's report was "certainly sought in good faith and with full regard to the Court's obligations under the Canon," he contended that "the contents of the Professor's advice"-which addressed only the ethical propriety of the CBQ interview-"make it clear that it does not pertain to any 'law applicable to [the] proceeding before [this Court].'" (Ex. Q at 3.) This was so, the prosecutor argued, because "in ruling upon a defendant's suppression motion, the only 'law applicable to [the] proceeding before the judge' is the law governing a statement's 'voluntariness' under [section 60.45 of the Criminal Procedure Law] and the state and federal constitutions." (Id. at 4.)

Ethical canons, the People argued on April 30, 2010, "are not law. They are not statute. . . . In fact, what they are are guidance. It is meant to provide guidance to the profession as a whole." (Ex. P-1at 5.) And in a subsequent filing, the District Attorney articulated the view that "[t]he Code of Professional Responsibility and the Model Rules are largely aspirational, setting forth the highest standards to which the profession should aspire." (Ex. Q at 9.) Because, in the prosecutor's view, ethical violations could never lead independently to suppression, it was not appropriate for Judge Blumenfeld even to consider whether there had been any ethical violations. Accordingly, the District Attorney argued that "even entertaining the question of whether the People's Central Booking Interview Program violates the rules of ethics is wholly misplaced . . . and highly prejudicial to the People." (Id. at 11 (emphasis in original).) The prosecutor urged Judge Blumenfeld to "categorically and affirmatively reject the very premise that an ethics argument should even be considered in the context of [a] motion [to suppress]." (Id. at 12.)

On July 27, 2010, the District Attorney filed voluminous supplemental papers in support of his motion to strike the Yaroshefsky report: (i) a sixty-page memorandum of law, (ii) affirmations from District Attorney Brown and six of his assistants, (iii) an affidavit from Detective Sergeant Picone, a police detective assigned to the CBQ Interview Program; and (iv) expert submissions from former Court of Appeals Judge Joseph W. Bellacosa and Assistant Professor of Law Marc O. DeGirolani of St. John's University School of Law. (Ex. R.) In these supplemental papers, the District Attorney argued that Professor Yaroshefsky's report should be stricken from the record "as it is factually, legally, and logically incorrect, and thus, cannot be deemed to constitute 'the advice of a disinterested expert on the law applicable to a proceeding before the judge' as contemplated by § 100.3(B)(6) of the Rules of Judicial Conduct, under which her advice was sought." (Id. at 3.)

Judge Blumenfeld's August 9, 2010 Oral Decision and August 12, 2010 Interim Order

On August 9, 2010, Judge Blumenfeld orally denied the District Attorney's April 30 motion (as supplemented by the May 28 and July 27 submissions), holding that: (i) ethical rules can be addressed on a motion to suppress statements pursuant to Criminal Procedure Law § 60.45, and (ii) the court would not strike Professor Yaroshefsky's ethics report. (Ex. T at 5--8.)

On August 12, 2010, Judge Blumenfeld issued an interim order with respect to the defendant's motion to suppress the CBQ statements and other evidence. (Ex. A.) As to the CBQ issues, Judge Blumenfeld reiterated and expanded upon the preliminary rulings in his August 9 decision. (Id. at 14--17.) But he did not rule on the motion to suppress Perez's CBQ statements, holding that this motion would be addressed in a later order, "after additional memoranda of law are received by the court." (Id. at 1--2.)

These additional memoranda were due on September 27, 2010, and the court asked that they address "the impact of DR 1-102(A)(4) of the Code of Professional Responsibility-now Rule 8.4(c) of the Rules of Professional Conduct-on the admissibility of the defendant's [CBQ] statement." (Id. at 17 (citation omitted).)

The District Attorney's Article 78 Petition for a Writ of Prohibition

On September 27, 2010, the District Attorney's Office informed Judge Blumenfeld that, rather than filing the additional memorandum of law that was due, it "inten[ded] to file an Article 78 petition in the Appellate Division challenging [his] authority to consider the ethics issue in the context of the suppression motion" and challenging his decision "to consider Professor Ellen Yaroshefsky's Report." (Ex. V at 2.) ADA Aldea requested that Judge Blumenfeld stay further proceedings in People v. Perez "while the Article 78 [petition] is pending." (Id. at 3.) Justice Blumenfeld granted this stay request, noting that defendant's counsel did not object and defendant was free on bail. (Id.)

On September 30, 2010, the District Attorney filed his petition for a writ of prohibition in this Court, seeking a judgment "enjoining [Judge Blumenfeld] from considering and ruling upon an alleged disciplinary rule violation in his suppression decision, and ordering that Prof. Yaroshefsky's report be stricken from the public record of the case." (Pet. ¶ 26.) Judge Blumenfeld now submits his opposition to the petition.


"Article 78 relief in the nature of prohibition is an extraordinary remedy." Matter of Hynes v. George, 76 N.Y.2d 500, 504 (1990) (citation omitted); see, e.g., Matter of Oglesby v. McKinney, 7 N.Y.3d 561, 565 (2006); Matter of Cuomo v. Hayes, 54 A.D.3d 855, 856 (2d Dep't 2008); see also Matter of Lee v. Cnty. Ct. of Erie Cnty., 27 N.Y.2d 432, 438 (1971) (holding that "the remedy of prohibition is an extraordinary one which is only available in rare cases"). "In cases such as this, where judicial authority is challenged, it is only available if a clear legal right exists and then only when the court acts or threatens to act either without jurisdiction or in excess of its authorized powers." Hynes, 76 N.Y.2d at 504; see, e.g., Matter of Holtzman v. Goldman, 71 N.Y.2d 564, 569 (1988); Matter of Dowd v. Buchter, 76 A.D.3d 630, 630 (2d Dep't 2010). Even where a clear legal right exists, and a judge acts without jurisdiction, "[t]he writ of prohibition . . . does not issue as a right, but only in the sound discretion of the court." Matter of Liere v. ECO Dallas Bengal, 63 A.D.3d 1067, 1067 (2d Dep't 2009) (quoting Matter of Rush v. Mordue, 68 N.Y.2d 348, 354 (1986)).

The District Attorney's petition in this case does not come close to satisfying this stringent standard. Although it is chock full of overblown rhetoric, the petition glosses over several key points that warrant dismissing it out of hand: Judge Blumenfeld has not ruled that any statements that Perez made at his CBQ interview should be suppressed. Nor has he ruled that the District Attorney, or any of his assistants, has done anything illegal or unethical. The petition was brought before the Judge ruled, in order to preempt his consideration whether the People's questioning of Perez may have been improper or unethical. This attempt to muzzle a sitting judge from ruling on issues properly before him is unprecedented, unsound, and unwise. It is an attack on judicial independence that ought be swiftly rejected for at least the following reasons:

First, far from demonstrating a "clear legal right" to the relief requested, the District Attorney's petition challenges actions-Judge Blumenfeld's refusal to strike Professor Yaroshefsky's expert submission and his careful consideration whether the defendant's interrogation was proper and ethical-that are commonplace in the courts and, under well-settled precedent, are lawful and appropriate. See infra pp. 24--48.

Second,Judge Blumenfeld has neither acted nor threatened to act "without jurisdiction or in excess of [his] authorized powers" in the underlying criminal proceeding. Holtzman,71 N.Y.2d at 569. Thus, even if there were legal error here (which there is not), the "extraordinary remedy" of prohibition would not lie. See infra pp. 48--50.

Finally, and putting all else aside, prohibition is not warranted here as a matter of this Court's discretion. See infra pp. 50--52.

For all these reasons, as discussed below, the District Attorney's petition for a writ of prohibition should be denied. See, e.g., Matter of Chasm Hydro, Inc. v. N.Y. State Dep't of Envtl. Conservation, 14 N.Y.3d 27, 31 (2010) (denying Article 78 petition for prohibition because petitioners failed to meet their "heavy burden").



In his petition and memorandum of law, the District Attorney makes a show of attempting to meet his burden by arguing that Judge Blumenfeld "egregious[ly] abuse[d] [his] authority" in the underlying criminal proceeding, thereby granting the prosecutor a "clear legal right" to the extraordinary remedy of prohibition. (DA Mem. at 25--26, 29; see Pet. ¶¶ 2, 25.) But more is required than a parroting of the appropriate legal standard coupled with vitriol. Stripped of nasty adjectives, the petition boils down to a challenge to the following: (1) Judge Blumenfeld's request for and decision not to strike the Yaroshefsky report; (2) Judge Blumenfeld's consideration of the ethical propriety of the Queens Central Booking Interview Program in ruling on Perez's motion to suppress statements he made during his CBQ interview; and (3) Judge Blumenfeld's consideration vel non of the ethical practices of the District Attorney and Assistant District Attorneys appearing before him. (Pet. ¶¶ 1--2, 25; see DA Mem. at 23--25, 29--52.)

None of these supposed "legal error[s]" is an error at all, let alone one that could establish the "clear legal right" required to warrant a writ of prohibition under Article 78. On this ground alone, the petition should be denied.

A.Judge Blumenfeld Properly Requested, and Properly Denied the District Attorney's Motion To Strike, Professor Yaroshefsky's Expert Ethics Submission

As discussed above, on April 14, 2010, Professor Ellen Yaroshefsky submitted a seven-page written expert report in the People v. Perez criminal proceeding. See supra pp. 15--17. Judge Blumenfeld requested this report, which opined on the propriety of the Queens Central Booking Interview Program under the New York Rules of Professional Conduct, under Canon (3)(B)(6)(b) of the Code of Judicial Conduct (codified at 22 NYCRR § 100.3(B)(6)(b)), which provides that

[a] judge may obtain the advice of a disinterested expert on the law applicable to a proceeding before the judge if the judge gives notice to the parties of the person consulted and a copy of such advice if the advice is given in writing and the substance of the advice if it is given orally, and affords the parties reasonable opportunity to respond.

22 NYCRR § 100.3(B)(6)(b).

As Judge Blumenfeld noted, several prior decisions in Queens County Supreme Court "ha[d] raised issues about the ethical nature" of the CBQ Interview Program. Additionally, defendant Perez had argued "that his interview by the District Attorney's Office was unethical and that the appropriate remedy is suppression of the statement." (Ex. A at 14.) Judge Blumenfeld requested a report from Professor Yaroshefsky "[i]n order to fully understand and address the ethical issues involved in the pre-arraignment interrogation conducted by the Queens District Attorney in CBQ." (Id. at 14--15.)

Neither the District Attorney nor the defendant objected to this procedure at the time. (See Ex. O at 3--5; Ex. D.) Indeed, when notified that Judge Blumenfeld had sought the advice of Professor Yaroshefsky "regarding potential ethical issues arising in the suppression hearing," Assistant District Attorney Aldea merely "thank[ed] [Judge Blumenfeld] for [the] notification, and for [his] attention to this matter," stated that she "look[ed] forward to receiving and reviewing Prof. Yaroshefsky's response," and requested "a 'reasonable opportunity to respond' to Prof. Yaroshefsky's advice, if the People deem this necessary." (Ex. D.)

In accordance with this request, the requirements of Canon 3(B)(6)(b), and the decision in Matter of Fuchsberg, 426 N.Y.S.2d 639 (Ct. Jud. 1978), Judge Blumenfeld provided each party with a copy of Professor Yaroshefsky's report as soon as he received it, and he gave the parties an opportunity to respond to the report. (Ex. C; Ex. A at 14--15.) Each party did respond: the District Attorney's Office filed two separate memoranda of law, affirmations from the District Attorney himself and six of his Assistants, an affirmation from a police detective assigned to manage the CBQ Interview Program, and its own expert submissions from former Judge Joseph W. Bellacosa and Assistant Professor of Law Marc O. DeGirolani. (See Ex. Q; Ex. R.)At the time this petition for a writ of prohibition was filed, resulting in a stay of further proceedings, see supra p. 21, Judge Blumenfeld had set a date for the receipt of additional briefing "on the impact of DR 1-102(A)(4) of the Code of Professional Responsibility (22 NYCRR 1200.3)- now Rule 8.4(c) of the Rules of Professional Conduct-on the admissibility of the defendant's statement in the Central Booking interview." (Ex. A at 17.)

Judge Blumenfeld denied the District Attorney's motion to strike the Yaroshefsky report from the record-a decision that the District Attorney's Office apparently regards as a frontal assault on its integrity-but he made it clear that he has not endorsed the ethics report of Professor Yaroshefsky, or the contrary submissions of Judge Bellacosa or Professor DeGirolani submitted by the prosecutor. (See Ex. T at 8, 14; Ex. S at 9; Ex. A at 14.) Judge Blumenfeld merely held, quite properly, that "the weight given to each submission is for the court to decide." (Ex. A at 17.)

Despite this careful adherence to the procedures required by the Judicial Canon, and despite the prosecutor's failure to raise any objection to Professor Yaroshefsky, or the court's consideration of an expert report on the ethics of the CBQ Program, until after the report was submitted, the District Attorney now argues that his "clear legal rights" were violated by Judge Blumenfeld's request for and refusal to strike the Yaroshefsky report, and that this supposed "legal error" entitles him to a writ of prohibition "ordering that Prof. Yaroshefsky's report be stricken from the public record of the case." (Pet. ¶ 26; see DA Mem. at 23--26, 29--41.) This argument is wholly without merit.

First, the District Attorney's position that Professor Yaroshefsky's ethics report is not permissible under Canon 3(B)(6)(b) (codified at 22 NYCRR § 100.3(B)(6)(b)) because it "simply does not pertain to any 'law applicable to [the] proceeding before the judge' on defendant Perez's suppression motion" (DA Mem. at 32) is baseless in the extreme.

The prosecutor's argument that rules of professional ethics are not "law" under "the clear terms of 22 NYCRR § 100.3" is belied by the language of § 100.0(G), which defines "law" for purposes of the Judicial Canon-including, as relevant here, Canon 3(B)(6)(b). See 22 NYCRR § 100.0(G). Section 100.0(G) states: "Law denotes court rules as well as statutes, constitutional provisions and decisional law." Id. (emphasis added). In New York, the Rules of Professional Conduct (and, previously, the Code of Professional Responsibility)-which are what Professor Yaroshefsky discusses in her report-are inarguably "court rules" in this and every other Judicial Department. Id. § 1200.0 (Rules of Professional Conduct); id. §§ 1200.1--1200.46 (superseded by § 1200.0, Apr. 1, 2009) (Disciplinary Rules of the Code of Professional Responsibility). Accordingly, they are also inarguably "law" upon which a judge properly may request expert advice under Canon 3(B)(6)(b). Id. § 100.0(G); id. § 100.3(B)(6)(b); see also, e.g., Carl M. Selinger, The Problematical Role of the Legal Ethics Expert Witness, 13 Geo. J. Legal Ethics 405, 412 (2000) (noting that an appropriate method for a judge to receive legal ethics advice "would be for the court to invite a disinterested ethics scholar to file an amicus curiae brief" pursuant to the Judicial Canon).

The District Attorney is similarly misguided in arguing that ethics rules are not "applicable to [the] proceeding" because the only law applicable on a suppression motion is "the law governing a statement's 'voluntariness' under the [Criminal Procedure Law] and the state and federal constitutions." (DA Mem. at 32.) New York courts have regularly examined ethical rules in determining whether a defendant's statement should be suppressed on constitutional grounds. See, e.g., People v. Skinner, 52 N.Y.2d 24, 28--30 (1980) (holding that its decision to suppress the defendant's statements found support in "the ethical responsibility of attorneys" under the Code of Professional Responsibility); infra pp.35--39.

And, as noted above, numerous recent suppression decisions by other judges of the Queens County Supreme Court have analyzed the ethical propriety of the very same CBQ Interview Program at issue in this case. See supra pp. 9--13.

In addition, as we discuss below (see infra pp. 45--48), Judge Blumenfeld plainly has the power to supervise the conduct, including the ethical practices, of the attorneys who appear before him. See, e.g., Matter of De Perno v. Garramone, 120 Misc. 2d 881, 882 (Sup. Ct. 1983) (noting that a judge's power to "regulate the conduct of attorneys in his courtroom" includes "the authority to determine whether an attorney has run afoul of the code of professional responsibility"). In the Perez case, the attorneys appearing before Judge Blumenfeld obviously include the District Attorney and his assistants. Accordingly, and whether it was right or wrong, Professor Yaroshefsky's report regarding the ethical conduct of the District Attorney's Office in this case was unquestionably "applicable to [the] proceeding" now pending before Judge Blumenfeld in People v. Perez.

Second, the District Attorney raises various ad hominem attacks against Judge Blumenfeld and Professor Yaroshefsky in an apparent effort to show that Professor Yaroshefsky is not a "disinterested" expert, as required under Canon 3(B)(6)(b). (DA Mem. at 33--41); see 22 NYCRR § 100.3(B)(6)(b). These attacks have no merit, and they should not have been made.

Contrary to the District Attorney's assertion, the record does not show that Justice Blumenfeld "socialized" with Professor Yaroshefsky, but precisely the opposite. As both the corrected transcript of the proceedings and the accompanying affirmation make clear-and as he informed the parties-Judge Blumenfeld knew Professor Yaroshefsky professionally through his work over the years teaching trial advocacy at Cardozo Law School, but he "do[es]n't socialize with her." (Ex. P-2 at 12; Pomerantz Aff.¶¶ 7--11.)*fn11 And, as a matter of law, though Judge Blumenfeld has no social or business relationship with Professor Yaroshefsky, a judge's "minimal social relationship" with an expert (even if combined with a "financial connection") would not make that expert "interested" for purposes of the Judicial Canon. N.Y. Jud. Adv. Op. 06-28, 2006 WL 4909931 (N.Y. Adv. Comm. Jud. Eth. Mar. 9, 2006) (finding that "the judge need not disclose [a] remote social relationship nor disqualify him/herself from appointing or presiding over proceedings involving this expert, unless the judge personally entertains doubts about his/her impartiality").

The prosecutor also argues that Professor Yaroshefsky is not a "disinterested" expert because "both her curriculum vitae and her public statements, as well as . . . the content of the report she furnished to the court" evidence that she is "an advocate and an activist" with "an extreme anti-prosecution bent, and a view of legal ethics that is well outside the mainstream of expert thought on these issues." (DA Mem. at 35--36.) Without responding to the specifics of these venomous charges (which are being addressed in several amici curiae briefs that have been or will be submitted to this Court), we note that Judge Blumenfeld made clear on the record why he consulted Professor Yaroshefsky in this case-i.e., "because of the numerous articles she has written on ethics (which have been cited well over 100 times) as well as her work on various ethics committees"-and this basis for the appointment has not been refuted by the District Attorney. (Ex. A at 15 n.15.)

Moreover, as the only court to consider such an argument has held, the sort of professional "bias" alleged here, which is based upon academic writings and professional background, does not mean that a law professor is not a "disinterested" expert under the Judicial Canon. See Time Warner Entm't Co. v. Baker, 647 So. 2d 1070, 1071--72 (Fla. Dist. Ct. App. 1994) (holding that judge could obtain advice from a law professor as "a disinterested expert on the law applicable to [the] proceeding," even though it was alleged that the professor had previously been part of the enforcement staff of the state consumer agency and had written articles showing a pro-consumer bias).

The point of Canon 3(B)(6)(b), as elaborated in the authoritative decision in Matter of Fuchsberg,is to ensure that when a judge receives legal advice from law professors and other outside experts, "in each case where an expert is consulted, the parties are informed of his identity, the substance of his advice and allowed an opportunity to respond." Fuchsberg, 426 N.Y.S.2d at 648; see also id. at 647--48 (noting that "[w]hen properly safeguarded," the judicial practice of consulting with experts on the law "can assist in achieving thorough and well-researched opinions"). Judge Blumenfeld did exactly that in this case. And, as discussed above, he has not adopted Professor Yaroshefsky's report or rejected the contrary views submitted by the District Attorney. Judge Blumenfeld has yet to make any ruling at all with respect to Perez's CBQ interview-either as to the interview's ethical propriety or as to Perez's pending motion to suppress the statements he made during his CBQ interview.

Because Judge Blumenfeld has not yet ruled on the correctness of Professor's Yaroshefsky's report, we do not address here the merits of that report except to state the obvious: The fact that the District Attorney does not like it and believes it to be wrong does not mean that the Judge was obliged to "strike" the report from the record. Lambasting the report as "incendiary," "baseless," and "bias[ed]" does not advance the analysis.

Even if Judge Blumenfeld had formed the view that Professor Yaroshefsky's report was wrong in whole or in part-though the prosecutor brought this petition before that issue was even fully submitted to the Court-this does not mean that it would have been appropriate to strike the report from the record. The prosecutor's papers cite no case law supporting the proposition that the opinion of a court expert ought be stricken from the record under any circumstances. Even in a routine civil case, a party may move to strike only "scandalous or prejudicial matter unnecessarily inserted in a pleading." CPLR § 3024(b). Professor Yaroshefsky's views were not "scandalous or prejudicial" within the meaning of this rule, and in any case they were not "unnecessarily inserted" into her report. Rather, they were directly relevant to the issues upon which the Court asked for her views.*fn12 Further, the failure to strike the report could not in any case support the extraordinary remedy-a writ of judicial prohibition-that the District Attorney seeks here. Indeed, in the civil context an order refusing to strike "scandalous or prejudicial matter" from a pleading is one of the few interim orders that the legislature chose not to make appealable as of right. See CPLR § 5701(b)(3); Panish v. Panish, 24 A.D.3d 642, 643 (2d Dep't 2005).

In sum, Judge Blumenfeld's actions are entirely in accordance with Canon 3(B)(6)(b), and they provide no basis for a writ of prohibition.

B.Judge Blumenfeld May Properly Consider the Ethical Propriety of the Queens Central Booking Interview Program in Deciding Whether To Suppress Defendant Perez's Statements Made During His CBQ Interview

The District Attorney also argues that Judge Blumenfeld's consideration of the ethical propriety of the Queens Central Booking Interview Program in ruling on Perez's motion to suppress is a violation of "clear legal rights" because the question whether the conduct of his office violated the disciplinary rules "is entirely irrelevant to the voluntariness of defendant's statement, and, as such, may not be considered in a suppression motion." (DA Mem. at 49; see id. at 41--49.) Thus, the District Attorney contends, he is entitled to a writ of prohibition "enjoining [Judge Blumenfeld] from considering and ruling upon an alleged disciplinary rule violation in his suppression decision." (Pet. ¶ 26; see DA Mem. at 49.) This argument ignores controlling case law and the language of the Criminal Procedure Law.

While the District Attorney fails to cite the applicable decisions, the Court of Appeals and other New York courts have repeatedly made clear that the ethical practices of prosecutors-including whether prosecutors have violated the Code of Professional Responsibility-are relevant factors for a court to consider in determining whether to suppress a defendant's statement on constitutional grounds under Criminal Procedure Law § 60.45.*fn13

In People v. Skinner, for example, the Court of Appeals reversed the order of the Appellate Division and granted the defendant's motion to suppress statements he made to the police in the absence of the attorney he had retained on the matter. 52 N.Y. 24, 29 (1980). In a lengthy discussion of the New York constitutional right to counsel, the Court of Appeals emphasized that the prosecutor's conduct under the Code of Professional Responsibility (and, in particular, DR 7-104, which was addressed in Professor Yaroshefsky's expert report) factored into its ruling. Id. at 28--30. As the Skinner Court stated:

This court's vigilance in protecting the right to counsel finds additional support even in the ethical responsibility of attorneys in civil matters not to communicate on the subject of the representation with an individual known to be represented by an attorney on the matter (see New York State Bar Association Code of Professional Responsibility, DR 7-104, subd A, par [1]; see, also, ABA Code of Professional Responsibility, DR 7-104, subd A, par [1]). We would be hard pressed to proscribe such conduct in the civil context yet blithely overlook it in the criminal sphere.

Id. at 29--30.

Likewise, in People v. Bell, the Court of Appeals, while rejecting the defendant's argument for suppression under the facts, explained that the "broader State rule" protecting the defendant's constitutional right to counsel was partially based on ethical principles and the Code of Professional Responsibility. 73 N.Y.2d 153, 159--60 (1989). Indeed, before it could conclude that suppression was not warranted, the Bell Court found it necessary to determine that "[t]he People did not . . . breach the ethical proscription against direct communication with persons represented by counsel on the subject of the representation" that is mandated by DR 7-104. Id. at 162.

This approach by the Court of Appeals in Skinner and Bell is directly contrary to the District Attorney's assertion here that consideration of the disciplinary rules is "wholly irrelevant to [the] suppression motion." (DA Mem. at 50; see id. at 42--49.) And these two decisions are not alone. Numerous cases in the Court of Appeals, the Appellate Division, and the Supreme Court have similarly looked to ethical principles and disciplinary rules in determining whether a statement should be suppressed on constitutional grounds under Criminal Procedure Law § 60.45. See, e.g., People v. Bing, 76 N.Y.2d 331, 349--50 (1990) (examining "ethical principles" and "disciplinary rule[s]" in determining that a defendant's statements in the case should not be suppressed under the state constitution); People v. Hobson, 39 N.Y.2d 479, 484--85 (1976) (suppressing defendant's statements made in the absence of his attorney because, for among other reasons, "an attempt to secure a waiver of the right of counsel in a criminal proceeding in the absence of a lawyer, already retained or assigned, would constitute a breach of professional ethics, as it would be in the least-consequential civil matter" (citing DR 7-104)); People v. Goldfinger, 149 Misc. 2d 765, 766, 771--72 (Sup. Ct. N.Y. Cnty. 1991) (Andrias, J.) (granting defendant's motion pursuant to § 60.45 to suppress certain statements recorded by her co-conspirator "as violative of her New York State constitutional right to counsel," while noting that "there is also ample support for the result reached herein under the proscriptions of Disciplinary Rule DR 7-104(A)(1)").*fn14

Moreover, it is clear under section 60.45 that a constitutional violation is not a prerequisite for suppression of a defendant's statement on the grounds that it was "involuntarily made." N.Y. Crim. Proc. Law § 60.45; see, e.g., People v. Rodney, 85 N.Y.2d 289, 292 (1995). As Judge Blumenfeld noted in his August 12 Interim Order, the language of the statute also provides, in pertinent part, "that a defendant's statement will be deemed 'involuntarily made' and may not be received in evidence against a defendant in a criminal proceeding, if it is obtained:

By any person . . . by means of any . . . improper conduct or undue pressure which impaired the defendant's . . . mental condition to the extent of undermining his ability to make a choice whether or not to make a statement." (Ex. A at 15--16 (quoting N.Y. Crim. Proc. Law § 60.45(2)(a)) (emphasis added).) Here, as Judge Blumenfeld held below, "[s]ince the defendant challenges the propriety of the conduct of both the attorneys and their agent (the detective who questioned him in the Central Booking interview), consideration of ethical standards is necessary to determine whether their conduct is improper under CPL 60.45(2)(a)." (Id. at 16; see also Ex. U at 8--9.)

The District Attorney argues that Judge Blumenfeld's interpretation of section 60.45 is "flatly incorrect" and "illogical," as it "ignores that the statute is not concerned with the examiner's personal ethical obligations, but rather, with the 'voluntariness' of the suspect's statement." (DA Mem. at 44; see id. at 44--49.) More particularly, the District Attorney argues that, under Judge Blumenfeld's reading, "an interview conducted by an attorney might be subject to suppression for violating a disciplinary rule, while an identical interview conducted by a police officer of the same suspect, under the same circumstances, would not be suppressible on such grounds," and that "[t]his is clearly contrary to section 60.45's purpose and language." (DA Mem. at 45 (emphasis in original).)

As Judge Blumenfeld noted in the Interim Order, the District Attorney is "reading CPL 60.45 too narrowly." (Ex. A at 15.) Indeed, whether an interrogation is conducted by a prosecutor or a police officer can be a significant factor in the suppression analysis, precisely because of the prosecutor's ethical obligations as an attorney. See, e.g., People v. Wright, 172 Misc. 2d 674, 682 (Sup. Ct. 1997) (holding that suppression was not warranted where "the defendant was questioned by a detective," rather than a prosecutor, and thus any concern "regarding a violation of the Code of Professional Responsibility governing attorneys" was not present); see also Goldfinger, 149 Misc. 2d at 771--772 (stating that there was "ample support" for the decision to suppress a defendant's statement under section 60.45 "under the proscriptions of Disciplinary Rule DR 7-104(A)(2)"). Judge Blumenfeld's interpretation of section 60.45-including his "consideration of ethical standards . . . to determine whether [the prosecutors'] conduct [wa]s improper under CPL 60.45(2)(a)"-is thus entirely appropriate.

The federal courts have been even more explicit about the role prosecutorial ethics can play on a suppression motion. In United States v. Hammad, the Second Circuit held that a violation by prosecutors of the Code of Professional Responsibility could warrant the suppression of a defendant's statement even if the "governmental misconduct . . . falls short of a constitutional transgression." 858 F.2d 834, 840--41 (2d Cir. 1988). As the Hammad Court stated, under such circumstances, "in light of the underlying purposes of the Professional Responsibility Code and the exclusionary rule, suppression may be ordered in the district court's discretion." Id. at 840; see also Goldfinger, 149 Misc. 2d at 771--72 (holding that reliance on the Hammad rule and violation of a disciplinary rule alone was "unnecessary" in that case because "New York's right to counsel compels the suppression of the statements here"); People v. Rossi, 154 Misc. 2d 616, 621 n.4 (Justice Ct. 1992) (citing Hammad and other federal cases where evidence obtained in violation of a disciplinary rule was suppressed, and stating that "[i]n such an instance, the predominant rule is that the product of such a[n] [improper] contact . . . should be disregarded").*fn15

Consistent with these and other authorities, other judges of the Queens County Supreme Court have examined the ethical propriety, under the Code of Professional Responsibility and the Rules of Professional Conduct, of the same CBQ Interview Program at issue in this case. See supra pp. 9--13.

None of this means that the Queens Central Booking Interview Program is necessarily unethical or unconstitutional, or that statements made pursuant to it must be suppressed. Indeed, Judge Blumenfeld himself has denied numerous motions made by defendants to suppress statements made during their CBQ interviews. See supra p. 13. And he has made clear that he is "not here to be the ethical arbitrator of the district attorney's practice," but rather "to decide the individual case." (Ex. S at 10--11.) For his own reasons, the District Attorney decided to file this petition before Judge Blumenfeld made a decision whether any improper, illegal, or unethical conduct took place in connection with Perez's CBQ interview. All that Judge Blumenfeld has held is that, under the particular facts of People v. Perez, further inquiry into the legal and ethical propriety of Perez's CBQ interview is appropriate. (See Ex. A at 17; Ex. T at 9--17.)

The Judge's decision to consider this issue hardly warrants the filing of an action for a writ of prohibition. The District Attorney plainly would have preferred the Judge to have "stuck to his knitting," and not have looked into the propriety of Perez's CBQ interview. But, apart from being consistent with the governing statutory and decisional law of this State, the Judge's inquiry was well warranted by the particular circumstances of the Perez criminal case. Perez was told in his CBQ interview that "[i]f there is something you would like us to investigate concerning this incident, you must tell us now so we can look into it." (Ex. E.) He then provided the District Attorney's Office with an account of the alleged robbery that, in Judge Blumenfeld's view, "crie[d] out for an investigation." (Ex. T at 9--10.) Specifically, Perez claimed that he and the alleged robbery victim (who had not identified Perez and who never indicated to the police that Perez was known to him) had had a violent dispute over a girl, which had landed Perez in the hospital. Perez provided the name of the hospital and the first name of the girl, with whom he had attended high school. (Ex. E; Ex. T at 9--10, 17.) Judge Blumenfeld was not acting beyond the scope of his judicial authority in inquiring whether the People, who had told Perez that he had to answer their questions so that they could "investigate," had undertaken even the slightest investigation of Perez's claims. As noted above, supra p. 7 n.6, the record is unclear whether any investigation was undertaken. If Perez's story had been verified, it would have cast doubt on the allegation that a robbery had occurred.*fn16

Whether a failure to investigate was consistent with what Perez had been told, and whether such a failure would have provided a legal or an ethical basis for suppression, are questions that Judge Blumenfeld did not reach prior to the filing of this petition. But the District Attorney's sharp criticism of the Judge for even addressing these questions epitomizes institutional arrogance, and suggests a view that the prosecutors' questioning of Perez in this case was so plainly proper that the Judge did something wrong even by reviewing it. Such a lack of respect for a lower court's role should be loudly and clearly rejected by this court. The People's questioning of Perez might or might not ultimately be deemed lawful and proper. But our legal system leaves that decision to the judge, not the prosecutor.*fn17

C.Judge Blumenfeld, Like All Judges, Has the Power To Regulate the Conduct, Including the Ethical Practices, of the Attorneys Who Appear Before Him

The District Attorney's final assertion of legal error in the petition is even more wrong and even more disturbing. In arguing that a writ of prohibition is necessary to enjoin Judge Blumenfeld from "even entertaining the question of whether the People's Central Booking Interview Program violates the rules of ethics," the District Attorney appears to contend that a formal grievance committee is the only forum in which allegations of professional conduct may be addressed and decided in this State, and that a court has no power to regulate or review the ethical conduct of the attorneys who appear before it. (DA Mem. at 51; see id. at 49--52.)

This is an unseemly claim for the District Attorney to have advanced. It flies in the face of District Attorney Brown's own prior statements about the relationship between the judiciary and his office. As the District Attorney himself stated publicly just last year, "it is the judiciary to whom we look to insure fairness, to hold both sides to the highest standards of professionalism and to keep a watchful eye out for the slightest indication that justice is not being served." (Ex. G at 9; see also id. at 7 ("Prosecutors, especially, must be held to a higher standard of conduct. They must refrain from improper conduct and at all times act in a manner consistent with the highest ethical standards.").) Having acknowledged the important role of the judiciary in upholding the ethical standards of the prosecutors in his Office, the District Attorney acts inconsistently (if not hypocritically) in applying for an order to prohibit Judge Blumenfeld from considering the ethical propriety of the Perez interview.

In any case, it is well settled in New York and elsewhere that a court "has the power and responsibility to regulate the conduct of the attorneys who practice before it," and that "[t]his power includes the authority to determine whether an attorney has run afoul of the code of professional responsibility." Lanza v. Rath, 150 Misc. 2d 85, 89 (Sup. Ct. 1991); Matter of De Perno, 120 Misc. 2d at 882; see, e.g., Chang v. Chang, 190 A.D.2d 311, 319 (1st Dep't 1993) (holding that a court has "control over attorneys appearing before it"); Matter of Moxham v. Hannigan, 89 A.D.2d 300, 302 (4th Dep't 1982) (holding that "a Judge has the overriding duty to preserve the integrity and honor of the judicial system" and "has the authority to regulate the conduct of attorneys in his courtroom"); see also, e.g., Matter of First Nat'l Bank of East Islip v. Brower, 42 N.Y.2d 471, 474 (1977) (noting "courts' inherent and statutory power to regulate the practice of law").

Indeed, Canon 3(D)(2) of the Code of Judicial Conduct (codified at 22 NYCRR § 100.3(D)(2)) provides that "[a] judge who receives information indicating a substantial likelihood that a lawyer has committed a substantial violation of the Code of Professional Responsibility shall take appropriate action."

22 NYCRR § 100.3(D)(2). While "appropriate action" can be a referral to disciplinary authorities, see, e.g., Doe v. Roe, 190 Misc. 2d 517, 525 (Dist. Ct. 2002) (finding that the "appropriate action" was to send the court's decision to the Grievance Committee), it can also be admonishment, even in dictum, in a court opinion. See, e.g., Grasso v. Grasso, 26 Misc. 3d 1206(A), 2009 WL 5213562, at *2 & n.4 (Sup. Ct. Dec. 2, 2009) (finding that "the admonishment" of counsel in a judicial opinion "constitutes 'appropriate action'" under Canon 3(D)(2)); see also ABA Model Code of Judicial Conduct Canon 3(D)(2) cmt. ("Appropriate action may include direct communication with the . . . lawyer who has committed the violation, other direct action if available, and reporting the violation to the appropriate authority or other agency or body.").*fn18

Although the petition criticizes Judge Blumenfeld for "injecting" ethical and disciplinary issues into this case, the law is clear that "[t]he judiciary has the ability to question any 'impropriety [which] appears on the record and the issue may be raised sua sponte.'" Dorsainvil v. Parker, 14 Misc. 3d 397, 400 (Sup. Ct. 2006); see also, e.g., Lanza, 150 Misc. 2d at 89 (noting court's "responsibility" to regulate attorney conduct); 22 NYCRR § 100.3(D)(2) (stating that a judge "shall take appropriate action" (emphasis added)).*fn19

Judge Blumenfeld's careful consideration of the ethical issues raised by Perez's CBQ interview is precisely what the law permits and indeed expects of a trial judge. Judges are expected to ensure the professional and ethical conduct of the lawyers who appear before them, including prosecutors, precisely as the District Attorney himself has previously recognized and encouraged. Judicial oversight of this sort is appropriate, lawful, and laudable and provides no colorable basis for a writ of prohibition.



Even if the District Attorney could establish some legal error, which he cannot, he would also have to show that Judge Blumenfeld acted or threatened to act "without jurisdiction or in excess of [his] authorized powers." Holtzman, 71 N.Y.2d at 569. And while the District Attorney's petition repeatedly asserts, in conclusory fashion, that Judge Blumenfeld acted and threated to act "outside of his jurisdiction" and "in excess of [his] authority," (Pet. at 2, ¶¶ 2, 25; DA Mem. at 26, 29, 41, 46 n.23, 49, 54),the record in this case and the applicable law show just the opposite.

There can be no legitimate argument that Judge Blumenfeld lacked "subject matter jurisdiction" over the underlying criminal proceeding, including the suppression decision that is the subject of this action. Holtzman, 71 N.Y.2d at 569; Matter of Catterson v. Rohl, 202 A.D.2d 420, 422 (2d Dep't 1994). Thus, the only relevant question here is whether the court "exceed[ed] its authorized powers in a proceeding over which it has jurisdiction." Cuomo, 54 A.D.3d at 856--57; see Catterson, 202 A.D.2d at 422.

As the Court of Appeals has explained, mere legal errors, "however egregious the error may be, and however cleverly the error may be characterized by counsel as an excess of jurisdiction or power," do not suffice under Article 78. Cuomo, 54 A.D.3d at 857 (internal quotation marks omitted); Matter of Phillips v. Ramsey, 42 A.D.3d 456, 458 (2d Dep't 2007). To qualify as the sort of "act in excess of power" that makes the remedy of prohibition available, the challenged action must have "impact upon the entire proceeding as distinguished from an error in a proceeding itself proper." Holtzman, 71 N.Y.2d at 569; Cuomo, 54 A.D.3d at 857; see also Matter of Vinluan v. Doyle, 60 A.D.3d 237, 244 (2d Dep't 2009) (finding that prohibition may lie where "a fundamental constitutional right" is implicated).

It is difficult to conceive how the matters at issue on this petition-i.e.,whether Judge Blumenfeld was required to strike an expert ethics report; whether ethical principles may be considered on a motion to suppress; and whether Judge Blumenfeld may review the conduct, including the ethical practices, of the prosecutors in this case-could possibly affect the "entire" criminal proceeding pending against Perez. See, e.g., Holtzman, 71 N.Y.2d at 569 (holding that a claim of double jeopardy impacts the "entire proceeding" and could provide a basis for prohibition); Matter of Rush v. Mordue, 68 N.Y.2d 348, 353 (1986) (holding that "the prosecution of a crime beyond the county's geographic jurisdiction" would "implicate the legality of the entire proceeding"); see also Matter of Blumen v. McGann, 18 A.D.3d 870, 870 (2d Dep't 2005) ("[P]rohibition does not lie to review the exercise of discretion in criminal cases.") Accordingly, under settled precedent, even if there were legal error here and the District Attorney's "clear legal rights" were violated, prohibition would not be an appropriate remedy.



The law is clear that "[t]he writ of prohibition . . . does not issue as of right, but only in the sound discretion of the court." Liere, 63 A.D.3d at 1067 (internal quotation marks omitted); see Holtzman, 71 N.Y.2d at 569. Here, even if (contrary to fact and law) Judge Blumenfeld had ruled illegally and had exceeded his jurisdiction, this Court's exercise of discretion to grant the remedy of prohibition would not be warranted.

As discussed above, Judge Blumenfeld has yet to rule on the defendant's pending motion to suppress evidence regarding his CBQ interview. He has not decided that any aspect of the Queens Central Booking Interview Program is illegal or unethical, or that any improper or unethical conduct took place in connection with Perez's interview. Under these circumstances, "issuance of a writ of prohibition would be an inappropriate, premature and unwarranted interference in pending judicial proceedings." Matter of McLaughlin v. Eidens, 292 A.D.2d 712, 714 (3d Dep't 2002); see, e.g., Matter of Feldman v. Marcus, 23 A.D.3d 559, 560 (2d Dep't 2005).

The District Attorney argues that prohibition is necessary in this case because otherwise the court's yet-to-be-made ruling on Perez's suppression motion "would be completely insulated from any kind of appellate review." (DA Mem. at 52.) Whether this assertion is accurate or not, it is of no moment.*fn20 As the Court of Appeals has made clear, without a showing that Judge Blumenfeld violated petitioner's "clear legal rights," acted without jurisdiction or in excess of his authorized powers, or, indeed, committed any legal error at all, the remedy of prohibition is simply unavailable-"however unreviewable" the issues raised otherwise may be by this Court. Oglesby, 7 N.Y.3d at 565; Cuomo, 54 A.D.3d at 856.*fn21



Part of a judge's role is to accept criticism-it comes with the territory. Parties who don't care for a judge's ruling frequently express their views in a manner that suggests that they dislike not only the ruling but the judge who made it. But the petition in this case is extraordinary for its vitriolic tone and numerous ad hominem attacks. Some response therefore must be made.

Throughout his papers, the District Attorney attempts to depict Judge Blumenfeld as a rogue jurist, as "an advocate, not . . . a neutral judge" who has "usurp[ed] the role of defense counsel" and "of the Disciplinary Committee and this Court" for "the specific and improper purpose of inserting an ethical challenge" into this case, in an effort to "trample the rights of the District Attorney and his Assistants" and "in a forum and manner specifically calculated to deprive the People of any opportunity for appellate review." (Pet. ¶ 25; DA Mem. at 23, 24, 28--29.)

This characterization is grossly unfair. As the prosecutor well knows, Judge Blumenfeld was not embarked on some extra-judicial crusade to criticize the CBQ interview process or the District Attorney's Office. In three previous cases, involving five different defendants, he denied motions to suppress statements made in CBQ interviews. (See supra p. 13.) He explained, on the record of this case, that he did not disfavor the CBQ program, and he specifically noted that the District Attorney should be commended for the practice of video recording the interviews. (See Ex. T at 24.) He also noted several times that he did not question the District Attorney's bona fides, and he did not want to discourage efforts designed to avoid unwarranted criminal charges. (Id. at 11, 20, 21, 28.) He specifically noted that the CBQ Program was a "work in progress" that the prosecutor was refining. (Id. at 11, 13). He indicated that he was troubled by one particular aspect of the process-telling the defendant that he needed to provide his version of the facts so that there could be an investigation, and then undertaking no investigation. (Id. at 12, 17, 22--24.) Further, the Judge noted below that his concern arose only after other judges had criticized the CBQ protocol, and after the People themselves indicated they wanted the issues to receive careful attention and extensive briefing. (Ex. P-1 at 10--11; Ex. P-2 at 12; Ex. Y-3; Ex. CC-3; see also Ex. A at 14.) And, of course, this is all occurred in a case in which Perez expressly argues that his CBQ statements should be suppressed because the program "violates the disciplinary rules." (Ex. M at 20.)

These were not the actions of someone looking to embarrass or to impugn the integrity of the District Attorney's Office; they were the actions of an experienced and careful judge who was simply trying to do his job. It is regrettable that the District Attorney's papers try to paint a different-and false- picture. The prosecutor repeatedly chastises the judge for "injecting" an ethical issue into the case so he could view it from his own "vantage point." (E.g., DA Mem. at 29--30, 32, 33--34.) In fact, Judge Blumenfeld did not "inject" the ethical issue into the case, though it would have been appropriate had he done so. But it is true that he had a particular "vantage point": He had the "vantage point" not of a party, and not of an advocate, but of a judge.

With respect to some (but not all) of the specific criticisms that the petition makes, we note three points:

First, the claim that Judge Blumenfeld improperly conducted "a lengthy, harsh, and pointed examination" of ADA Garg at the December 11 hearing "about matters well-beyond the scope of her direct testimony" in order to impermissibly "inject[] the issue of the District Attorney's ethics into the suppression motion" is belied by the record and has no basis in the law. (DA Mem. at 23, 28--29.)

Judge Blumenfeld's questioning of ADA Garg was neither "lengthy" nor "harsh," as even a cursory review of the suppression hearing transcript will show. (See Ex. L.) Judge Blumenfeld merely questioned ADA Garg about whether the District Attorney's Office had conducted any investigation regarding the CBQ statements made by Perez and his co-defendant. See supra pp. 7--8. This inquiry, for reasons already explained, was relevant both to whether the CBQ statements should be suppressed and to the court's responsibility to supervise the professional conduct of the attorneys who appear before it. See supra pp. 35--48. The District Attorney's Office never raised an objection to the questioning at the hearing or at any time until filing this petition. See, e.g., People v. Mays, 197 A.D.2d 361, 361 (1st Dep't 1993) (challenge to judge's "participation in the examination of the witnesses" was unreviewable because not "preserved by timely or appropriate objection").

The District Attorney alludes in the petition to this Court's reversals of Judge Blumenfeld in People v. Zamorano, 301 A.D.2d 544, 547 (2d Dep't 2003), and People v. Chatman, 14 A.D.3d 620 (2d Dep't 2005), decisions that were based partly on the Judge's "numerous questions throughout the proceeding." Zamorano, 301 A.D.2dat 546; see Chatman, 14 A.D.3d at 620--21. In both cases, however, this Court found that Judge Blumenfeld had intervened as "the complainant's advocate," on the side of the People, and that the District Attorney's Office strongly defended the Judge's actions on appeal. (Exs. EE & FF); Zamorano, 301 A.D.2d at 547; see Chatman, 14 A.D.3d at 620--21.

Neither case involved a pre-trial suppression hearing. Indeed, Chatman, like the other cases the District Attorney cites, involved a trial before a jury. (See DA Mem. at 28.) The law is clear that a suppression hearing before a judge, with no jury present, is an entirely different situation. See, e.g., People v. Button, 56 A.D.3d 1043, 1045 (3d Dep't 2008) (holding that challenge to judge's "interject[ing] questions at the Huntley hearing" was meritless because "[t]he disputed questions occurred at a pretrial hearing and not before a jury"); People v. McRae, 284 A.D.2d 657, 659 (3d Dep't 2001) (rejecting argument regarding judge's involvement in a suppression hearing because "at a suppression hearing the judge is the fact finder and there is no risk of prejudicing the jury").

Second, the District Attorney makes the bizarre complaint that Justice Blumenfeld somehow demonstrated a "lack of neutrality" because he refused to strike Professor Yaroshefsky's expert ethics report "even after the People provided full briefing and argument and moved to strike the report." (DA Mem. at 40 n.20 (emphasis in original).) The District Attorney, it appears, would like to reverse the roles of the various actors in our justice system. Simply put, courts, not prosecutors, have the final say. A judge's disagreement with the prosecution's arguments is not evidence of judicial error or bias, no matter how strenuously the District Attorney may object. The contrary argument is particularly odd here, since Judge Blumenfeld has not ruled or even indicated that he agrees with Professor Yaroshefsky's report.

Third, we must note that the petition makes an entirely false assertion that Judge Blumenfeld "socialized" with Professor Yaroshefsky. As discussed above, supra pp. 31--32, and as both the corrected record and the accompanying affirmation make clear, Judge Blumenfeld knows Professor Yaroshefsky professionally but he has never socialized with her.


The District Attorney's petition for a writ of prohibition should be denied.

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