SUPREME COURT OF TII STATE OF NEW YORK RICHARD J. DARONCO WESTCHESTER COUNTY COURTHOUSE 111 DR.

MARTIN LUTHER KING, JR. BOULEVARD WHITE PLAINS, NEW YORK 10601

(914) 824-538

CHAMBCS OF HON. I.ESTER B. ADLER

FAX
Date:
To: From: November 19. 2013
William Milaccio, Esg.

The Chambers of the Hon. Lester B. Adler 995-4672 PeooIe v Hossu B

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Subject: Number of Pages Including Cover:

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Our Fax Number: 914-995-8653

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FILED AND ENTERED

To cmm the statutoty time period for ,apIS as 01 right (GPLR 5513[aJ). you to serve a copy otthis oflier th i, of erby upon afl pa1es.

ON 1i-2Q13 WESTCHESTER COUNTY CLERK

SUPREME COURT: STATE OF NEW YORK. COUNTY OF PUTNAM

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PlSION & ORDER Indictment No.: 13-32

PEOPLE OF THE STATE OF NEW YORK -against ALEXANDRU HOSSU, Defendant.

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ADLER, J. By notice of motion dated October 28, 2013, the People move for an order g in directing that an inquiry be conducted pursuant to the Court of Appeals holdin The People People v. Gomberg, (38 N.Y.2d 307, 379 N.Y.S.2d 769, 342 N.E.2d 550). y. In an t have not, however, moved for an order disqualifying defendants curren attorne affirmation in response dated November 6, 2013, defense counsel states that neither he nor the defendant believe that any conflict exists, but does not oppose a limited 1 inquiry by the Court. The People contend that a potential conflict of interest exists between defendant and his current attorney stemming from the fact that Mentzer is the brother-in-law to Putnam County District Attorney Adam B. Levy, who is disqualified by court order from

Subsequent to the filing of the original notice of motion, the People filed a supplemental affirmation without first contacting the Court to request permission to do so. Thereafter, the defendant filed an affirmation in surrepty, also without requesting permission from the Court prior to filing the
submission. Nevertheless, the Court has considered both submissions in rendering its decision. The Court fully expects that this type of practice will not continue in the future.

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of the case, and both sued acting in this case, arid who has contributed to the defense People claim that this Court and blic1y affackedth Putna Coun Sheriff The ndant of that conflict and the should ascertain the nature of any conflict and advise defe People rely largely upon out-ofrisks attendant to it In support of this request, the bers of the media. court statements made by defendants former attorney to mem sel includes the right to It is well-settled that [a] criminal defendants right to coun ple v. Stevenson, 36 A.D.3d 634, be represented by counsel of hisown choosing (Peo 2c1 518, 866 N.E2d 464; 634, 831 N.Y.S2d 74, lv. denied 8 N.Y.3d 927, 834 N.Y.S. N.Y.S.2d 282, 401 N.E2d 3930). People v. Arroyave, 49 N.Y.2d 264, 285-286, 425 to select an attorney who he While this right is not absolute, [am individuals right sentation implicates both the First believes is most capable of providing competent repre the Sixth Amendment right to Amendment guarantees of freedom of association and N.Y2d 183, 196, 476 N.Y.S.2d 494, counsel (Matter of Abrams [John Anonymous], 62 156 A.D.2d 473, 474, 548 465 N.E2d I [citations omitted]; People v. Limongelli, S.2d 557, 562 N.E.2d 882). As N.Y.S.2d 759, appeal denied 76 N.Y.2d 894, 561 NY. recognized by the Court of Appeals: The constitutional guarantee ensuring the right of a defendant to be represented at trial by counsel of his own choosing serves many critical needs. Paramount among these considerations is the need for a defendant to be willing to confide freely and fully in his attorney so that the channels of communication and advice between counsel and his client may remain free-flowing and unobstructed. Mutual co operation between defendant and counsel is often times a critical prerequisite to effective legal representation, and an atmosphere of trust and respect can best be obtained if a defendants choice of counsel is honored (Arroyave, 49 N.Y.2d at 285-286). 2

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Juxtaposed to this right is an individuals right to the effective assistance of cunsI without compromise by a potential or actual conflict of interest (Limongelli, 156 A.D2d at 474; see also Matter of Abrams (John Anonymous], 62 N.Y.2d at 197). Effective assistance of counsel is representation that is reasonably competent, conflictfree and singlemindedly devoted to the clients best interests (People
V.

DiPippo, 82

A.D.3d 786, 789, 918 N,Y.S.2d 136, lv. denied 17 N.Y.3c1 903, 933 N.Y.S.2d 658, 957

NE2d 1162. quoting People v. Longtin, 92 N.Y.2d 640, 644, 684 N.Y.S.2d 463, 707 N.E.2d 418. cert. denied 526 U.S. 1114, 119 S.Ct. 1760, 143 L.Ed.2d 791 [internal
quotations omitted]). This right is impaired
when,

absent a defendants informed

consent, defense counsel represents interests which are actually or potentially in conflict with those of the defendant (People v. Beiroa, 99 N.Y.2d 134, 139, 753 N.Y.S,2d 12, 782 N.E.2d 1148 [citations omitted]). A conflict of interest may be based on defense counsels previous or concurrent representation of a client whose interests conflicted with those of defendant and cases where defense counsel became a witness against defendant (People
V.

Ennis, 1,1 N.Y 3d 403, 410, 872 N.Y.S.2d 364, 900

N.E.2d 925, cert denied 556 U.S. 1240, 129 S.Ct. 2383, 173 L.Ed.2d 1301 [citations omitted]: People vLombardo, 61 N.Y.2d 97,472 N.Y.S.2d 589,460 N.E,2d 1074 [attorneys prior representation of prosecution witness]; Gomberg, 38 N.Y2d 307 [joint representation of defendants]). In addition to simultaneous representation of clients with adverse interests or successive representations, an accusation of wrongdoing on the part of a defense attorney, while not automatically requiring disqualification, would create at least a

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may be potential conflict; when a lawyers own conduct is in question, the lawyer s expense (People V. Townsley, 20 N.Y.3d 294, impelled to protect himself at his client ley v. New Yo,*, 133 299-300, 959 N.Y.S.2c1 94, 982 N.E.2d 1227, cert. denied Thwris nsibility DR 5-1 01 [a] (22 SCt. 1829, 185 LEd.2d 840 citing Code of Professional Respo the inherent (a)]). Lastly, [c]ourts and commentators have recognized 2 NYCRR 1200.0 by a lawyer hired and paid dangers that arise when a criminal defendant is represented of the alleged criminal by a third party, particularly when the third party is the operator 1097,67 L.d.2d 220; enterprise (Wood v. Georgia, 450 U.S. 261, 268270, 101 SCt. U.S. 1070, 114 S.Ct. 1645, 128 United States v. Locascio, 6 F.3d 924, ceit denied 511 of criminal enterprise L.Ed.2d 365 [proof of house counsel used to establish existence under RICO]). t does not involve a In the present case, the purported potential conflict of interes accusation of wrongdoing on claim of simultaneous or successive representation, or an from out-of-court the part of defendants current attorney. Rather, the claim arises the Putnam statements by defendants former attorney regarding alleged conduct of y is his brother-inCounty District Attorney, and the fact that defendants current attorne
peiury, that he is not law. Defendants current attorney has affirmed, under penalty of

or any other receiving any financial compensation for legal fees, experts, investigators, the Putnam expenses to be incurred in his representation of the defendant, from the County District Attorney. Counsel further affirms that he will not discuss

UA1 lawyer shaLl not represent a dient if a he Rules of Professional Conduct provide as follows: 2 T risk that the lawyers professional judgment cant is signifi there reasonable lawyer would conclude that.. al, business, property or other on behalf of a client will be advrse1y affected by the lawyers own financi personal irlterestaw (22 NYCRR 1200.0 rule 1,7[aJ[2fl.
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of defendants case with the Putnam County District Attorney. As stated by the Court perjure Apeais in Gambrg, [ijt may properly be assumed that an attorney will not nsibility himself, nor deliberately act in violation of the Code of Professional Respo (Gamberg, 38 N.Y.2d at 314). from the To the extent the People are claiming that a potential conflict arises District Attorney, payment of legal fees by a third party other than the Putnam County al donations by the Sixth Amendment prohibits government from interfering with financi v Stein, 541 F3d 130, 155; family members, neighbors and friends (see United States [conflict where compare People v. McCutcheon, 109 A.D.3d 1086, 971 N.Y.S.2d 609 ution witness, paid his defendants thengirlfriend, who was complainant and key prosec attorneys fees]). t in their Historically, the courts of the State of New York have remained vigilan his own choosing is duty to ensure that a defendants right to retain counsel of vigilant in its protectecf (Arroyave, 49 N.Y.2d at 270), and this Court will be no less Gomberg, 38 obligation to respect the selection of counsel made by this defendant (see NY.2d at 312). Defendants right to counsel of his choosing is not to be lightly implicating the interfered with (see Id.), and in the absence of any facts rising to a level and his conflict of interest concerns, addressed in Gomberg between the defendant conduct an current attorney, the People have failed to establish a basis upon which to inquiry.

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In the event such a conflict does arise, defendants attorney is reminded of his eThicaIobiigation to disclose to his client, at the earliest possible time, the existence of any such conflicting interests that might cloud his representation (Id. at 314). In this case, the Court is aware of extra-judicial statements that have been made by attorneys and others to the media. However, the Court must not, and will not, permit these statements to detract it from its central focus and the immediate issue at hand; that being its duty to insure the orderly progress of this case consistent with fairness to both the People of the State of New York and Alexander Hossu. The parties are reminded that the trial in this case is scheduled to commence on March 3, 2014. In the interim, the Court remains available for any conferences which the parties feel are necessary to facilitate the orderly and fair process of this case. Accordingly, it is hereby ORDERED, that the Peoples motion for a Gcmberg inquiry is DENIED. The foregoing constitutes the Decision and Order of Court.

Dated: White Pins, NewYork

B. ADLER HON. LEST SUPREME COURT JUSTICE F-ION. JANET DiFIORE District Attorney, Westchester County 111 Dr. Martin Luther King, Jr. Boulevard White Plains, New York 10601 BY: William C. Milaccio, Esq. Assistant District Attorney MLNTZER & SHEINDLIN, LLC Attorneys for Defendant 6

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600 Mamaroneck Avenue, Suite 400 New York 10528

BY: Daniel Mentzer, Esq.

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