Petition for Writ of Certiorari — New York v. Blount

© (\) Supreme Court, U.S.

96-18383° FILED

MAY 20 1991

No.

@Frice OF TRE CLERK

In The

Supreme Court of the United States

October Term, 1990

THE PEOPLE OF THE STATE OF NEW YORK,

Petitioner,

VS.

STEVEN BLOUNT,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF THE STATE OF NEW YORK

DENIS DILLON

District Attorney

Nassau County

Attorney for Petitioner

262 Old Country Road

Mineola, New York 11501

(516) 535-3326

BRUCE WHITNEY

ALEXIS KRIEDMAN

Of Counsel

417

tz *NJ (201) 257-6850 *(800) 3 APPEAL*NY (212) 840-4640eMA (617) 542-1114

te ime. DC (202) 783-7288+PA (215) 925-6500°USA (800) 5 APPEAL

QUESTION PRESENTED FOR REVIEW

Whether the trial judge’s order, limited in scope to barring

astill-testifying defendant from discussing his ongoing testimony

with his attorney during an overnight recess, violated respondent’s

Sixth Amendment right to the assistance of counsel.

li

TABLE OF CONTENTS

Page

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Constitutional Provision Involved ...................5. 2

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TABLE OF CITATIONS

Cases Cited:

Geders v. United States, 425 U.S. 80 (1976) ............

Tee TT TT eet ToT er ie fy 6, 7, 8, 9, 11, 12, 13, 14

Michigan v. Harvey, ____ U.S. ____, 110 S. Ct. 1176 (1990)

MPT TTTTTTTTTT TTT ret 10

Mudd v. United States, 798 F.2d 1509 (D.C. Cir. 1986)

PITTTTTT TTT Te eT re 11, 12

iii

Contents

Page

People v. Bastien, 129 Ill. 2d 64, 541 N.E. 2d 670 (Ill. Sup.

I oe oe 64 Ke willn ens A pumas As 0 od.00.9 6 10

People v. Hagen, 86 A.D. 2d 617 (2d Dept. 1982) ....6, 7, 10

People v. Narayan, 54 N.Y. 2d 106, 429 N.E. 2d 123 (1981),

on remand, 88 A.D. 2d 622 (2d Dept. 1982), 58 N.Y.

I I UD ccc cca cccsececeses 7, 10

People v. Stroner, 104 Ill. App. 3d 1, 59 Ill. Dec. 764, 432

N.E. 2d 348 (1982), aff’d in part and rev. in part, 96

Ill. 2d 204, 70 Ill. Dec. 722, 449 N.E. 2d 1326 (1983)

ES ale Witton eh s-s Ba et Pre ea eee 13

Perry v. Leeke, 488 U.S. 272, 109 S. Ct. 594 (1989)

Pe ATAAG FW ed HBG 6, 7, 8, 9, 10, 11, 12, 13, 14, 15

State v. Fusco, 93 N.J. 578, 461 A.2d 1169 (1983) ...... 8

United States v. Cobb, 905 F.2d 784 (4th Cir.), cert. denied

sub nom. Hatcher, Sears, Keaton v. United States, 1990

W.L. 162484 (January 14, 1991)............... 8, 10, 11

United States v. Romano, 736 F.2d 1432 (11th Cir. 1984),

vacated in part on other grounds, 755 F.2d 1401 (1985)

Do CAE Bah PS EUR A MRO A 12, 13

Wooten-bey v. State, 568 A.2d 16 (Md. 1990)........ 8, 9, 11

Statutes Cited:

i TUE Caw a ch Siac rede cedececcuactas 2

iv

Contents

Page

New York Penal Law § 120.05 ................. ccc eees *.

United States Constitution:

Fs PTET RETETETE LETT 267,83 0, GB

Other Authority Cited:

New York State Constitution, Article I § 6 ............ 6

APPENDIX

Appendix A — Opinion of the Court of Appeals of the State

Oe CE tiie nus be > bed eked Waa ahi ve he la

Appendix B — Opinion of the Supreme Court of the State

of New York, Appellate Division, Second Judicial

IR iS db os bis fi ells ot ah o SS a dhapnnele ou ots 3a

Appendix C — Excerpts of Transcript of Proceedings Dated

Dep By (9S aise se. caaed.cadirald. cewovdws 6a

No.

In The

Supreme Court of the United States

_

October Term, 1990

THE PEOPLE OF THE STATE OF NEW YORK,

Petitioner,

VS.

STEVEN BLOUNT,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE COURT

OF APPEALS OF THE STATE OF NEW YORK

The Nassau County District Attorney, on behalf of the People

of the State of New York, petitions for a writ of certiorari to

review the order of the New York State Court of Appeals, which

affirmed the order of the Supreme Court of the State of New

York, Appellate Division, Second Judicial Department (hereinafter

**Appellate Division’’), which reversed the judgment of the County

Court of Nassau County (Lipp, J.), rendered October 30, 1987,

convicting the respondent Steven Blount of assault in the second

degree (New York Penal Law § 120.05), upon a jury verdict, and

imposing sentence.

OPINIONS BELOW

The opinion of the Court of Appeals (App., infra, la-2a)

has not yet been assigned an official citation. The opinion of the

Appellate Division (App., infra, 3a-Sa) is reported at 159 A.D.

2d 579 (2d Dept. 1990).

STATEMENT OF JURISDICTION

The order of the Court of Appeals was entered on March

21, 1991. The jurisdiction of this Court is invoked under 28 U.S.C.

§ 1257(3).

CONSTITUTIONAL PROVISION INVOLVED

The Sixth Amendment to the United States Constitution

provides:

In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an

impartial jury of the State and district wherein the

crime shall have been committed, which district

shall have been previously ascertained by law, and

to be informed of the nature and cause of the

accusation; to be confronted with the witnesses

against him; to have compulsory process for

obtaining witnesses in his favor, and to have the

Assistance of Counsel for his defense.

STATEMENT OF THE CASE

After a jury trial in the County Court of Nassau County,

State of New York, respondent was convicted of second degree

assault, in violation of New York Penal Law § 120.05(2). He

was sentenced, as a prior violent felony offender, to an

indeterminate term of imprisonment of 2% to 5 years.

1. On September 24, 1986, at approximately 9:15 p.m., Kenya

Baker and her cousin Derek Harris were at Covington’s, a store

in Freeport, Nassau County, New York, to buy food (Baker: 50-51;

Harris: 91-92).' As they stood at the checkout counter, the

respondent walked in, approached Harris, with whom he had two

confrontations on a public bus a few weeks before, said ‘‘I

remember you,”’ punched him in the face, and continued to engage

Harris in a confrontation before Harris left the store (Baker: 52,

57; Harris: 92-97, 99).

Upon leaving the store, Harris told an older friend, Philip

Sanders, who was in the store parking lot, what had happened,

and the respondent was coming in their direction (Harris: 100-101;

Sanders: 196-198). Harris then saw respondent’s arm swing around

Sanders, and also saw a silver one-sided shiny razor in resp»ndent’s

hand hit the left side of his face (Harris: 101, 104),’ causing a

deep cut between 2 to 4 inches in length. Bleeding heavily from

the wound, Harris was taken to South Nassau Hospital, where

Dr. Arthur Wise, a plastic surgeon, treated his wound by suturing

it (Harris: 103-106; Baker: 59-60; Wise: 162; Sanders: 201). Based

upon his observations that Harris’ cut was a clean straight line

that went through skin, fat, and muscle, Dr. Wise concluded that

the wound was caused by a surgically sharp object, and was

consistent with a razor blade injury (Wise: 165-166).

At trial, respondent took the stand on his own behalf and

recounted an incident about two weeks prior to the date of the

assault, when Harris and Harris’ friends menaced him on a public

1. Numbers in parentheses refer to page numbers of the trial transcript.

2. Sanders saw respondent smack Harris on the side of his face, but did

not see anything in respondent’s hand (Sanders: 201).

bus. In addition, respondent testified that he encountered Harris

with some friends on a public bus about one week later. There

was minimal conversation between the two before respondent got

off the bus (Blount: 212-214). Respondent maintained that he

then went to a Chinese restaurant, where he was assaulted by

Harris and his friends as he exited, and was cut on his head

(Blount: 214-215).

Respondent said that on September 24th, he entered

Covington’s, saw Harris, punched him in the face, and was going

to throw a bottle at him but did not. Harris did not fight back

and said he did not want to fight respondent (Blount: 217-218).

Once Harris left the store, respondent saw him talking with Philip

Sanders, and heard Harris state ‘‘that’s him, let’s get him,’” before

they cornered respondent in the parking lot (Blount: 219-220).

Respondent testified that he told them to stop, but they kept

coming at him, so he took out the wire-cutters he had been using

at work that day and swung them in the air (Blount: 220-222).

When he looked up, he saw Harris’s face bleeding and ran (Blount:

223).

On cross-examination, the prosecutor questioned respondent

extensively regarding doing electrical work without being a licensed

electrician, not feeling threatened by Harris on the night of the

assault, and actually punching Harris without provocation before

he cut him (Blount: 226-228). Additionally, the prosecutor

attempted to have respondent more particularly describe the wire-

cutters he allegedly used in self-defense against Harris.

2. Respondent took the stand on his own behalf on September

30, 1987. He had completed his direct testimony and was being

cross-examined when, at approximately 4:42 p.m., the court called

an overnight recess and dismissed the jury.’ At that time, the

following colloquy took place:

[THE PROSECUTOR]: . . . Since this is a critical

point in the testimony at this point and this witness

is sworn and under oath, I ask the Court to direct

Mr. Cooke [defense counsel] that he not discuss

this portion of the testimony with his client at this

time.

I believe that to do so, could result, although

it is not my intention to accuse Mr. Cooke of any

possible impropriety or coaching. I believe

inadvertently, it could result in such an occurrence

and I ask he be admonished not to discuss the case

at this time with his client.

THE COURT: You wish to be heard?

MR. COOKE: Well, Judge, I’m really not

sure how to respond to that. I would be agreeable

to leave it to the Court’s discretion . . . Judge,

I think it has to be clarified. I certainly feel I have

the right to speak to my client about his testimony.

3. During the cross-examination of respondent that had already occurred,

the prosecutor had, inter alia, shown respondent four types of wire-cutters in

an attempt to further clarify the type of weapon respondent claimed to have

used in self-defense against Harris. The description of the weapon was particular!

significant because the victim testified that he saw a one-edged razor, not a

wire-cutter as claimed by respondent, in respondent's hand before he was cut,

which was consistent with the medical testimony that the cut on Harris's face

was caused by a surgically sharp object (Harris: 101-102, 126; Wise: 165-166;

Blount: 220-223, 226-228, 259-273). The record shows over ten pages of cross-

examination was devoted to determining which, if any, of the wire-cutters

produced was similar to the one respondent used on the night of the assault.

[PROSECUTOR]: Judge no more than we have

a right —

THE COURT: Mr. Cooke, I’m directing you not

discuss this witness’ testimony at all. When he

completes his cross-examination, if you want

additional time to talk to him before you have a

redirect, I’ll consider that application.

MR. COOKE: I'll take exception to the

Court’s ruling on that.

(273-275; App., infra, 7a-9a).

3. In his brief to the Appellate Division, respondent argued

that the trial court’s order violated his right to the assistance of

counsel pursuant to the Sixth Amendment to the United States

Constitution and Article I, § 6 of the New York State

Constitution.* Respondent contended that pursuant to Geders v.

United States, 425 U.S. 80 (1976), and despite Perry v. Leeke,

488 U.S. 272 (1989), the trial court’s overnight ban of discussion

of testimony impermissibly impinged upon his Sixth Amendment

right to counsel, and required reversal. The Appellate Division

agreed (App., infra, 3a-Sa) rejecting the State’s contention that

this‘Court’s decision in Perry authorized the trial court’s limited

restriction on defendant-attorney consultation about respondent’s

ongoing testimony,’ and unanimously reversed respondent’s

4. Neither the Appellate Division nor the Court of Appeals decided this

case on New York state constitutional grounds (see footnote below).

5. The Appellate Division cited its previous decision in People v. Hagen,

86 A.D. 2d 617 (2d Dept. 1982), in which it held that the trial judge’s directive

to the defendant not to talk to his attorney about his ongoing testimony during

an overnight recess violated defendant's constitutional right to the assistance

(Cont'd)

»)

conviction. The New York State Court of Appeals unanimously

affirmed for the reasons stated in the Appellate Division’s

memorandum (App., infra, la-2a).

REASONS FOR GRANTING THE WRIT

In Geders v. United States, supra, this.Court held that an

overnight ban on all defendant-attorney consultation during

defendant’s ongoing testimony violated his Sixth Amendment right

to the assistance of counsel. The Court noted, however, that its

holding did ‘‘not re~~h, and [did] not deal with limitations imposed

in other circumstances’’ Jd. at 92. In Perry v. Leeke, supra, the

Court ‘‘consider[ed] whether the Geders rule applies to a similar

order entered at the beginning of a 15-minute afternoon recess’’

(488 U.S. at 274). This Court held that the order did not violate

defendant’s Sixth Amendment right to the assistance of counsel.

Recognizing that a defendant’s Sixth Amendment right is not

absolute, the Perry court based its decision on the brevity of the

recess (15 minutes) as an indication that the defendant and his

attorney presumptively would only talk about the constitutionally

unprotected content of defendant’s testimony.

Since Perry, one federal Circuit Court, as well as several state

courts of last resort, have strained to reconcile both the reasoning

and the lengths of recesses ruled on in Geders and Perry with

the facts in their own cases. While the Fourth Circuit Court of

Appeals has heid that a weekend ban on defendant-attorney

(Cont'd)

of counsel. In support, the Hagen court had cited this Court’s decision in Geders

and the New York Court of Appeals’ decision in People v. Narayan, 54 N.Y.

2d 106 (1981). The latter decision, however, did not decide the substantive issue

of whether barring defendant-attorney consultation during a recess was a

constitutional violation because of a procedural bar. Thus, it is evident that

the Appellate Division’s reversal in the case at bar was based on federal

constitutional law.

discussion of his ongoing testimony was closer to the Geders facts

than the Perry facts, and the New Jersey State Supreme Court

has held the same to be true in a case which is factually

indistinguishable from the case at bar, the Supreme Court of

Maryland has ruled that defendant’s Sixth Amendment rights were

not violated by a two hour ban on defendant-attorney discussion

of his ongoing testimony. The Maryland Court noted that fairness

required uninfluenced testimony from all witnesses, but that a

long recess with the same content restriction would have been

controlled by Geders. We believe the instant case presents a good

opportunity to resolve the important federal question of whether

the Geders and Perry decisions turned upon the content of the

orders or the length of time over which they were imposed.

1. The federal question presented is important to the criminal

justice system. Prior to Perry, a myriad of federal and state courts

interpreted Geders in a variety of ways regarding the

constitutionality of orders barring a criminal defendant’s access

to his attorney during a trial recess. See Perry, 488 U.S. at 277

n.2. After this Court’s decision in Perry, the Fourth Circuit Court

of Appeals heid that the trial court’s ban on a testifying defendant’s

weekend discussion with his attorney about his testimony violated

defendant’s Sixth Amendment right to the assistance of counsel

because of the length of that recess. United States v. Cobb, 905

F.2d 784 (4th Cir.), cert. denied sub nom. Hatcher v. United States,

1990 W.L. 162484 (January 14, 1991). In State v. Fusco, 93 N.J.

578, 461 A.2d 1169 (1983), the New Jersey Supreme Court held

that the trial court’s overnight ban on defendant-attorney

discussions of his ongoing testimony violated his constitutional

right to the assistance of counsel due to the length of the ban.

However, in Wooten-bey v. State, 568 A.2d 16, 19-20 (Md. 1990),

the Maryland Supreme Court found a two-hour ban of

conversations concerning defendant’s ongoing testimony passed

constitutional muster because of the integral truth-finding function

of an uninfluenced adversarial cross-examination. Even so, the

®)

Wooten-bey court inconsistently noted that such a restriction would

have violated the Sixth Amendment had the recess been ‘‘lengthy.”’

Wooten-bey, supra at 20. Because of the confusion exhibited by

both federal and state courts regarding the underlying rationale

of this Court’s decisions in both Geders and Perry, we believe

the instant case presents an opportunity for this Court to decide

the constitutionality of bans on defendant-attorney consultations

which are limited to the ongoing testimony of the defendant.

2a. The New York State Court of Appeals erred in affirming

the Appellate Division’s decision that the trial court’s order

violated respondent’s right to assistance of counsel. In Perry, this

Court wrote extensively on the importance of cross-examination

to the truth-seeking function of the trial. The Court stated ‘‘that

when a defendant becomes a witness, he has no constitutional

right to consult with his lawyer while his is testifying.’’ 488 U.S.

at 284. The Court distinguished its holding in Geders as follows:

The interruption in Geders was of a different

character because the normal consultation between

attorney and client that occurs during an overnight

recess would encompass matters that go beyond

the context of the defendant’s own testimony —

matters that the defendant does have a

constitutional right to discuss with his lawyer, such

as the availability of other witnesses, trial tactics,

or even the possibility of negotiating a plea bargain.

It is the defendant’s right to unrestricted access

to his lawyer for advice on a variety of trial-related

matters that is controlling in the context of a long

recess.

Perry at 284 (emphasis added). Thus, based on this Court’s

recognition in Perry that a defendant does not have

10

‘‘a constitutional right to discuss testimony while it is

in progress’’* (id. at 284), coupled with the trial court’s /imited

directive to defense counsel not to discuss the defendant’s

testimony during the overnight recess, respondent’s constitutional

right to the assistance of counsel was not violated.’

Since this Court’s decision in Perry, only one federal Circuit

Court of Appeals has decided a case wherein a defendant being

cross-examined was barred for more than a “‘brief’’ period of

time from conferring with his attorney about the content of his

ongoing testimony. In United States v. Cobb, supra, 905 F.2d

784, the court reversed defendant’s conviction where the limited

ban upon defendant-attorney consultation on the defendant’s

ongoing testimony occurred over a weekend recess (Friday at 4:45

p.m. to the next Monday at 1:30 p.m.), although defendant and

counsel were free to confer with each other about anything else.

The Cobb court agreed that once a criminal defendant took the

witness stand his truthfulness would be best tested by uninterrupted

cross-examination, but found a weekend recess went too far and

6. Although arising in different factual context from the case at bar, some

cases have cited Perry for its recognition of the importance of cross-examination

in the truth-finding process. See Michigan v. Harvey, __. U.S. ___., 110 S.

Ct. 1176, 1184 (1990)(Stevens, J., dissenting)(police induced and invalid waiver

of the Sixth Amendment rights did not preclude use of statement to impeach

defendant’s false or inconsistent trial testimony); People v. Bastien, 129 Lil.

2d 64, 541 N.E. 2d 670 (Sup. Ct. 1989) (statute permitting child abuse victim’s

videotaped testimony without provision for contemporaneous cross-examination

violated the Confrontation Clause because of the importance of cross-

examination in the truth-finding process).

7. Notably inconsistent with its order in the instant case, the Appellate

Division, post Hagen [86 A.D. 2d 617 (2d Dept. 1982)], ‘‘reject[ed] the notion

that every restriction upon a defendant’s access to his attorney constitutes

reversible error per se.’’ People v. Narayan, 88 A.D. 2d 622, 623 (2d Dept.

1982). The Appellate Division found it significant that the trial court in Narayan

‘unlike in Geders . . . , did not prohibit all conversation but only discussion

of the defendant’s testimony.’’ /bid.

}

2)

1]

must give way to the protections of the Sixth Amendment.

Significantly, the court stated that ‘‘[t]he reasoning of Geders

is even more persuasive here, where the recess in question was

not merely one night, but an entire weekend.’’ Cobb, supra

(emphasis added). Hence, it appears that the Cobb court may

have decided the case at bar, which involved only an overnight

recess, in favor of the State, but for the wrong reason (i.e., that

time is the factor controlling the constitutionality of the order).

In Wooten-bey v. State, supra, 586 A.2d 16, the Maryland

Court of Appeals upheld the conviction of a defendant who, during

defense counsel’s direct examination of him, was prohibited from

speaking with his attorney during a two-hour lunch break about

any of his prospective testimony. Although counsel objected, he

abided by the court’s ruling and was given adequate time to consult

with the defendant after he had been completely cross-examined.

Id. at 17. The court, heavily relying on Perry, gleened from that

decision a “‘line of constitutional dimension’’ which recognized

that once a defendant places himself at the heart of the truth-

finding trial process by becoming a witness, he is subject to the

same rules as other witnesses, and is not entitled to consult with

his attorney during his testimony. Wooten-bey, supra at 19. The

court further found the policy consideration involved to be the

fairness of requiring uninfluenced continuous testimony as a way

by which to measure the veracity thereof. Jd. at 20.°

2b. In the state appellate courts, respondent relied on the

decisions in Mudd v. United States, 798 F.2d 1509 (D.C. Cir.

8. Although the basis of the court’s decision appears to have been the

recognition that no defendant has the constitutional right to consult with counsel

while his testimony is in progress and that unadulterated testimony is of overriding

concern to the trial’s truth-finding function, in a footnote the court inconsistently

distinguished the facts before it from those in Geders, stating that in a long

recess (e.g., overnight) the unrestricted right to counsel would be controlling.

Wooten-bey, supra at 20, fn. 4.

12

1986) and United States v. Romano, 796 F.2d 1432 (11th Cir.

1984), vacated in part on other grounds, 755 F.2d 1401 (1985),

both of which were decided almost exclusively on the reasoning e

in Geders and before Perry. In Mudd, the court found defendant’s

Sixth Amendment right to the assistance of counsel was violated

by the trial judge’s instruction to ‘‘defense counsel not to speak

with his client about the latter’s testimony over a weekend recess.”’

Id. at 1510. In finding a constitutional violation, the court rejected

the government’s contention that the court’s direction not to

discuss defendant’s testimony differed materially from the court’s

direction to the defendant in Geders not to speak to his lawyer

about ‘‘anything.’’ The Mudd court’ interpreted Geders as

‘*forbid[ding] prohibitions on attorney/defendant discussions of

the defendant’s testimony during a substantial recess, not just

blanket prohibitions during such a recess.’ Mudd, supra at 1512.

In Perry, however, the Court found that the defendant has no

‘*constitutional right to discuss his testimony with his attorney

while it is in process’? (488 U.S. at 284). The only logical

implication is that an order of a trial judge limited in scope to

directing no attorney/defendant discussion about defendant's

ongoing testimony would be proper. Hence, inasmuch as Perry

removed the underpinnings of the Mudd decision, Mudd is no

longer persuasive authority.

Romano, too, involved a trial court’s order forbidding the

defendant from consulting with his attorney concerning his

testimony during an overnight recess which ultimately extended

several days. In reversing, the court relied in part on cases decided ®)

by the courts of appeal in other Circuits. Jd. at 1436-1437. The

holdings in those cases are of questionable validity in the aftermath |

9. The government argued that the distinction was crucial because pursuant

to the trial judge’s directive, Mudd, unlike the defendant in Geders, could still

help counsel plot strategy and tactics, pursue leads, and discuss some of the

day’s events. Mudd, supra at 1511.

aici |

13

of Perry. The Romano court also placed great emphasis on the

failure of the Geders court to ‘‘indicate that a restricted prohibition

against talking with a defendant about his testimony’’ would not

run afoul of a defendant’s Sixth Amendment entitlement to the

effective assistance of counsel. /d. at 1437. Again, this Court’s

decision in Perry suggests that a restricted prohibition against

talking with a defendant about his testimony would pass

constitutional muster.'°

Moreover, if defense counsel has a legitimate reason to speak

to defendant during his ongoing testimony, or if he is not sure

whether his intended conversation would violate the court’s order,

he can ask the court for an advance ruling. Furthermore, if counsel

is concerned about prematurely revealing his trial strategy to the

prosecutor, he can make his motion on the record and ex parte,

which would also allow him to preserve the ruling for appellate

review.

In sum, ‘‘the right to consult with counsel is subject to

reasonable restrictions to preserve the integrity of the truth-seeking

process and to maintain an orderly trial procedure’’ People v.

Stroner, 104 Ill. App. 3d 1, 59 Ill. Dec. 764, 432 N.E. 2d 348,

351 (1982), reversed on other grounds, 96 Ill. 2d 204, 70 Ill. Dec.

722, 449 N.E. 2d 1326 (1983). Here, the court’s order barring

the defendant and his counsel from consulting with each other

overnight about the defendant’s testimony was narrow in scope

and ‘‘was designed to assure the integrity of the legal process,

specifically the cross-examination that would immediately

commence after the recess.’’ /bid. In no way did this order preclude

10. Notably, to interpret the decision in Perry as being based exclusively

on the length of time covered by the trial judge’s directive precluding a testifying

defendant from consulting with counsel, rather than the substance of the

directive, has the potential of involving the courts in a virtual endless morass

of litigation to determine what time span constitutes a ‘‘brief’’ recess.

4

discussion ©. availability of other witnesses, trial tactics, the

possibility of negotiating a plea bargain, or any other

constitutionally protected consultation. Rather, the content of the

trial court’s order addressed the very truth-finding concern

recognized in Perry, while respecting the defendant’s constitutional

rights as enunciated in the narrowly-tailored Geders decision.

Accordingly, defendant’s right to the effective assistance of counsel

was not violated.

2c. Likewise, respondent’s argument in the courts below, that

a harmless error argument is inappropriate is devoid of merit.

This Court addressed the issue of harmless error and the

requirement to show prejudice in Perry in a different context than

is presented in the case at bar. In both Perry and Geders, this

Court decided that barring a// consultation between a testifying

defendant and his attorney is not subject to a harmless error

argument. In so deciding, the Perry Court stated:

There is rnerit in petitioner’s argument that a

showing of prejudice is not an essential component

of a violation of the rule announced in Geders . . ..

Our citation of Geders in this context was intended

to make clear that ‘‘[a]ctual or constructive denial

of the assistance of counsel a/together . . . is not

subject to . .. prejudice analysis .

Perry, supra at 278 (emphasis added and citations omitted). Thus,

since the availability of a harmless error argument only has been

precluded where there has been a Geders/Perry violation — i.e.,

denial of defendant’s unquestionable constitutional right to

assistance of counsel altogether — respondent’s argument that

the same rule applies to his case is undermined by the fact that

the respondent was not denied his right to counsel altogether,

and the Perry Court’s recognition that respondent has no

constitutional right to consult counsel during his ongoing

15

testimony. Likewise, defense counsel’s record comments clearly

demonstrated that he understood the trial court’s limitation to

include only discussion of respondent’s ongoing testimony, and

that it did not prohibit any constitutionally protected right.

Moreover, despite respondent’s assertions in the state courts that

the instant instructions limited his ability to effectively consult

with his client, no legitimate reason exists to have allowed such

consultation. Although respondent pointed to the necessity to

discuss the advisability of possible additional defense witnesses

referred to in his testimony or the need to produce the type of

wire-cutters he claims to have used in self-defense, such assertions

are devoid of merit. Firstly, respondent alone knew in advance

what his testimony would consist of. As part of deciding if

respondent would testify and preparing him for such testimony,

it was defense counsel’s job to thoroughly discuss possible areas

and methods of cross-examination and any corroborating witnesses

or evidence that he thought would enhance the credibility of

respondent’s testimony before respondent took the stand. That

a particular attorney did not do his job should not provide him

with an excuse to undermine the truth-finding process so essential

to our trial system. Additionally, respondent presumptively could

have spoken to his attorney between cross-examination and re-

direct testimony, since the court’s ruling allowed for such an

application to be made at the conclusion of cross-examination.

That defense counsel failed to make such an application, thereby

foregoing a timely opportunity to demonstrate what he contended

on appeal to be prejudice to his trial position, should not inure

to his benefit.

3. Due to the widely divergent reasoning and results in the

post-Perry cases, we believe that this case affords this Court an

opportunity to resolve the important federal question of whether

the constitutionality of a trial court’s order barring defendant-

attorney conversation about ongoing defendant testimony turns

upon its content or the length of time such bar is in effect. The

16

widespread significance of this issue is apparent by noting the

myriad of time intervals which is involved.

CONCLUSION

The petition for a writ of certiorari should be granted.

‘Respectfully submitted,

DENIS DILLON

District Attorney,

Nassau County

Attorney for Petitioner

BRUCE E. WHITNEY

ALEXIS KRIEDMAN

Assistant District Attorneys

Of Counsel

la

APPENDIX A — OPINION OF THE COURT OF APPEALS

OF THE STATE OF NEW YORK

. Remittitur

COURT OF APPEALS

STATE OF NEW YORK

The Honorable Sol Wachtler, Chief Judge, Presiding

No. 41

The People &c.,

Appellant,

Steven Blount,

Respondent.

The appellant in the above entitled appeal appeared by Hon.

Denis Dillon, District Attorney, Nassau County; the respondent

appeared by Matthew Muraskin, Esq., Legal Aid Society of

Nassau County.

The Court, after due deliberation, orders and adjudges that

the order is affirmed for the reasons stated in the memorandum

at the Appellate Division (159 AD2d 579). Chief Judge Wachtler

and Judges Simons, Kaye, Alexander, Titone, Hancock and

Bellacosa concur.

The Court further orders that this record of the proceedings

in this Court be remitted to the Nassau County Court there to

be proceeded upon according to law.

ita ee

2a

Appendix A

I certify that the preceding contains a correct record of the

proceedings in this appeal in the Court of Appeals and that the

papers required to be filed are attached.

s/ Donald M. Sheraw

Donald M. Sheraw,

Clerk of the Court

Court of Appeals, Clerk’s Office, Albany, March 21, 1991

3a

APPENDIX B — OPINION OF THE SUPREME COURT OF

THE STATE OF NEW YORK, APPELLATE DIVISION,

SECOND JUDICIAL DEPARTMENT

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL

DEPARTMENT

4458s

Z/hu

— Argued - January 29, 1990

GUY J. MANGANO, J.P.

LAWRENCE J. BRACKEN

GERALDINE T. EIBER

STANLEY HARWOOD, JJ.

2504E

The People, etc., respondent, v Steven Blount, Appellant.

(Ind. No. 64952)

DECISION AND ORDER

Matthew Muraskin, Hempstead, N.Y. (Kent V. Moston

and Carol Lewisohn of counsel), for appellant.

Denis Dillon, District Attorney, Mineola, N.Y. (Bruce

E. Whitney and Alexis Kriedman of counsel), for

respondent.

Appeal by the defendant from a judgment of the County

Court, Nassau County (Lipp, J.), rendered October 30, 1987,

convicting him of assault in the second degree, upon a jury verdict,

and imposing sentence.

4a

Appendix B

ORDERED that the judgment is reversed, on the law, and

a new trial is ordered. No questions of fact have been raised or

considered.

During the cross-examination of the defendant, the trial court

directed an overnight recess, and directed defense counsel, over

his objection, not to discuss the defendant’s testimony with the

defendant “‘at all’’. This instruction violated the defendant’s right _

to the assistance of counsel (see, People v. Hagen, 86 AD2d 617).

The holding of the United States Supreme Court in Perry v. Leeke

US , 109 S Ct 594), does not mandate a contrary result.

In Perry v. Leeke (supra, at 602), the United States Supreme Court

merely held that the ‘‘Federal Constitution does not compel every

trial judge to allow the defendant to consult with his lawyer while

his testimony is in progress if the judge decides that there is good

reason to interrupt the trial for a few minutes’’. In so holding,

the United States Supreme Court stated (Perry v. Leeke, supra,

at 602):

**It is the defendant’s right to unrestricted access

to his lawyer for advice on a variety of trial-related

matters that is controlling in the context of a long

recess. See, Geders v. United States, 425 U.S., at

88, 96 S.Ct., at 1335. The fact that such discussions

will inevitably include some consideration of the

defendant’s ongoing testimony does not

compromise that basic right. But in a short recess

in which it is appropriate to presume that nothing

but the testimony will be discussed, the testifying

defendant does not have a constitutional right to

advice.”’

Knpeneaaas —_———- ~~ a ee ee

Sa

Appendix B

ty Accordingly, the judgment of conviction musi be reversed

and a new trial ordered.

MANGANO, J.P., BRACKEN, EIBER and HARWOOD, J.J.,

concur.

Enter:

Martin H. Brownstein

Clerk

March 12, 1990

6a

APPENDIX C — EXCERPTS OF TRANSCRIPT OF

PROCEEDINGS DATED SEPTEMBER 30, 1987

[Commencing at page 148]

COUNTY COURT : NASSAU COUNTY

PART XIII

IND. #64952

THE PEOPLE OF THE STATE OF NEW YORK

-against-

STEVEN BLOUNT,

Defendant.

262 Old Country Road

Mineola, New York

September 30, 1987

BEFORE:

THE HONORABLE HERBERT J. LIPP,

County Court Judge,

and a Jury

APPEARANCES:

(AS PREVIOUSLY NOTED.)

** © * *

7a

Appendix C

(The following took place in the Courtroom, outside the

presence of the jury:)

THE CLERK: Indictment 64952. People versus Steven

Blount.

People?

MR. MACY: Ready, your Honor.

* * *

[273] A. None of the heads are the same. These are all flatter.

The pair I had was approximately about this size.

Q. Approximately the size you have in your hand

now? A. Approximately this size.

Q. Let me ask you to look at the number on that. Tell us

which exhibit that is? A. I can’t read your writing. 14 for ID.

MR. MACY: Judge, may I approach at this time with

Counsel?

Can I approach?

(Whereupon, both attorneys approached the Bench and a

discussion was held off the record, outside the hearing of the jury.)

THE COURT: Members of the jury, we will recess now for

the balance of the day. I ask that you return tomorrow morning

at 9:30 in the morning.

8a

Appendix C

Please continue to follow my admonition of not discussing

this case among yourselves or anyone else, and continue to keep

an open mind.

You are excuse for the balance of the day.

(Whereupon, the jury left the Courtroom at 4:40 P.M., and

the following took place without the jury present:)

MR. MACY: Judge, I have one further application [274] to

make at this time. Since this is a critical point in the testimony

at this point and this witness is sworn and under oath, I ask the

Court to direct Mr. Cooke that he not discuss this portion of

the testimony with his client at this time.

I believe that to do so, could result, although it is not my

intention to accuse Mr. Cooke of any possible impropriety or

coaching, I believe that inadvertently, it could result in such an

occurrence and I ask he be admonished not to discuss the case

at this time with his client.

THE COURT: You wish to be heard?

MR. COOKE: Weil, Judge, I’m really not sure how to

respond to that. I would be agreeable to leave it to the Court’s

discretion. What I think Mr. Macy is trying to do is totally

improper. To set himself up so that he has a great rebuttal here,

Judge. I think it’s going beyond the bounds of good faith.

THE COURT: I don’t want to deal with that application.

I just want to deal with his present application. Do you feel that

is an appropriate application?

e'

9a

Appendix C

MR. COOKE: Judge, I think it has to be [275] clarified. I

certainly feel I have a right to speak to my client about his

testimony.

MR. MACY: Judge, no more than we have a right —

THE COURT: Mr. Cooke, I’m directing you not discuss this

witness’ testimony at all. When he completes his cross examination,

if you want additional time to talk to him before you have a

redirect, I’ll consider that application.

MR. COOKE: I’Il take exception to the Court’s ruling on that.

THE COURT: 9:30 tomorrow morning.

(Whereupon, Court was adjourned at 4:42 P.M. until October

Ist, 1987, at 9:30 A.M.)