Petition for Writ of Certiorari — Amato v. New York

Natasa

PRT Tet, U.S,

FILED

NOV 20 i897

IN THE

Supreme Court of the Hniten State — —

October Term, 1991

PHILLIP AMATO, RITA AMATO, and JAMES RAFFA,

Petitioners,

against

STATE OF NEW YORK,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

APPELLATE DIVISION OF THE SUPREME COURT

OF NEW YORK, SECOND DEPARTMENT

RICHARD E. MISCHEL, P.C.

Attorney for Petitioners

225 Broadway, Suite 2199

New York, New York 10007

(212) 227-7040

RICHARD E. MISCHEL

Of Counsel

2. Whether Petitioners' federally

guaranteed rights to due process,

confrontation and cross-examination were

violated by the procedures adopted by the

trial court in conducting a jury and a non-

jury trial as a single trial.

Ze Whether Petitioners' federally

guaranteed rights to have compulsory

process for obtaining witnesses in their

favor was violated by the court's refusal

to enforce a subpoena requiring’ the

Commander of the 109th Police Precinct to

appear and testify.

Whether Petitioner Phillip

Amato's federally guaranteed right to

counsel of choice was violated by the

court's order disqualifying his privately

retained counsel, and counsel's law firn,

from representing him at trial.

LIST OF PARTIES

The parties to the proceeding below

were Petitioners Phillip Amato, Rita Amato,

and James Raffa and the Respondent, State

of New York.

ii

TABLE OF CONTENTS

Questions Presented. ....

RAee OF PRAEGCAOB. « « «© 2 ©

Table of Authorities...

Opinions Below ......

Sy

Constitutional Provisions

a

Statute Involved .....

Disciplinary Rules of New

York Code of Professional

Responsibility ....

Statement of the Case...

Reasons For Granting The Writ.

Conclusion .

APPENDIZ

Decision and Order, Dated

May 28, 1991, Affirming

The Judgment Convicting

Petitioner Phillip Amato

And Imposing Sentence. . .

Decision and Order, Dated

May 28, 1991, Affirming

The Judgment Convicting

Petitioner Rita Amato

And Imposing Sentence. .

iii

11

30

la

5a

TABLE OF CONTENTS (Cont'd)

Decision and Order, Dated

May 28, 1991, Affirming

The Judgment Convicting

Petitioner James Raffa

And Imposing Sentence. .

Certificate Denying Leave

To Appeal To The Court Of

Appeals Upon Reconsideration,

Dated August 21, 1991 --

Petitioner Phillip Amato .

Certificate Denying Leave

To Appeal To The Court Of

Appeals Upon Reconsideration,

Dated August 21, 1991 --

Petitioner Rita Amato. .

Certificate Denying Leave

To Appeal To The Court Of

Appeals Upon Reconsideration,

Dated August 21, 1991 --

Petitioner James Raffa

iv

Ja

9a

10a

lla

FEDERAL CASES

,

391 U.S. 123 (1968) .....

’

399 U.S. 149 (1970) .....

v. United States, 491 U.S.

617 (1989) s se s eo eo 7 J o J 7

, 476 U.S.

Se Se ks we 8

Western Well Works, 261

SS) Se |) i

[06 Gis Bee taeee) st

, 439 U.S.

Rakas v. Illinois

128 (1978), reh. denied,

439 U.S. 1122 (1979)... .

ery,

349 U.S. 70 (1955). ....-

— Ere

ee Wk ks 4 et

Smith v. DeRobertis, 758 F.2d

1151 (7th Cir. 1985) (citing

CBGGG) «© « 0 6 86 © 8 @

21

28

12

20

11

1l1l-12

TABLE OF AUTHORITIES (Cont'd)

, 469 U.S.

45 (1984) s o es eo e e e s s o

’

618 F.2d 934 (2d Cir. 1980) .

‘

610 F.Supp. 568 (D.Puerto

I gee

United stat Jo} sotti,

et al., ___ FF. Supp. |

(E.D.N.¥. 1991) (New York Law

Journal, 8/5/91, p. 21)...

816 F.2d 823 (1st Cir. 1987).

_ Uni Vv wis,

716 F.2d 16 (D.C.Cir. 1983),

cert. denied, 464 U.S. 996

(1983). o — @ e o > eo _ o . oo

i . santo,

491 U.S. 600 (1989). .....

Wheat v. United States, 486

ies Bee SOS. 6 6 hk ww

STATE CASES

People v. Bing, 76 N.Y.2d 331,

559 N.Y.S.2d 474, 558 N.E.2da

1011 (Ct.App. 1990) .....

People v. Mahboubian, 74 N.Y.2da

174, 544 N.Y.S.2d 769, 543

N.E.2d 34 (Ct.Ap. 1989) ...,

vi

,

29

20

18

27

18

18

21

21, 26

24

17

TABLE OF AUTHORITIES (Cont'd)

, 54 N.Y.2d

294, 445 N.Y¥.S.2d 119, 429

N.E.2d 797 (Ct. App. 1981)... 22

., 73 N.Y.2d

228, 538 N.Y.S.2d 796, 535

N.E.2d 1336 (Ct.App. 1989)... 18

, 153 A.D.2da

59, 549 N.Y.S.2d 515 (A.D.

2d Dept. 1989), app. denied,

75 N.Y.2d 925, 555 N.Y.S.2d

44, 554 N.E.2d 81 (Ct.App.

ee. ok a ek eee ee CO

S & S Hote] _v. 777 S.-H. Corp.,

69 N.Y.2d 437, 515 N.Y.S.2da

735, 508 N.E.2d 647 (Ct.App.

Ce eee ceo eee sa «| «8

, 52 N.Y.2d 24,

436, N.Y.S.2d 207, 417 N.E.2d

$01 (Ct.App. 1981). . +++ és -» 6

STATE STATUTES

N.Y. Penal Law §150.00 .... -; a, 3

N.Y. Crim. Pro. L. §60.22

(McKinneys 1981) ....++-. - S. Mas

vii

TABLE OF AUTHORITIES (Cont'd)

MISCELLANEOUS

Disciplinary Rules of

N.Y. Code Of Professional

Responsibility. ........ 21-22

Frost, “Lawyers Disqualified

in Gotti Prosecution.

Conflicts, Advocate-Witness

Rules Cited," New York Law

Journal, 7/29/91, a a

viii

No.

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1991

PHILLIP AMATO, RITA AMATO, and

JAMES RAFFA,

Petitioners,

- against -

STATE OF NEW YORK,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE APPELLATE DIVISION OF THE

SUPREME COURT OF THE STATE OF NEW

YORK, SECOND DEPARTMENT 0

Petitioners Phillip Amato, Rita Amato,

and James Raffa respectfully pray that a

Writ of Certiorari be issued to review the

Decisions and Orders of the Appellate

Division of the Supreme Court of the State

of New York, Second Judicial Department,

rendered on May 28, 1991, which unanimously

affirmed the judgment of the Supreme Court

of the State of New York, Kings County,

convicting the Petitioners of Arson in the

Third Degree (N.Y. Penal Law §150.10

(McKinney, 1988]) and imposing sentence.

Leave to appeal to the New York Court of

Appeals was denied upon reconsideration on

August 21, 1991 (9A-11A).

OPINIONS BELOW

The Decisions and Orders of the

Appellate Division of the Supreme Court of

New York, Second Department, are reported

at: Ss A.D.2d __, - 570 N.Y.S.2d 817 (A.D.

2d Dept. 1991) (Petitioner Phillip Amato) ;

_... A-D.2d _, 570 N.Y.S.2da 819 (A.D. 2a

Dept. 1991) (Petitioner James Raffa) ;

A.D.2a , $70 8.¥.8.24 1017 (A.D. 24

Dept. 1991) (Petitioner Rita Amato). The

Decisions and Orders are reprinted in the

Appendix, pp. la-8a.

JURISDICTION

The jurisdiction of this Court is

invoked under 28 U.S.C. §1257(3). The

Appellate Division's Decisions and Orders

sought to be reviewed were filed on May 28,

1991. Leave to appeal to the Court of

Appeals was timely sought on behalf of

Petitioners Phillip Amato, Rita Amato, and

James Raffa. On August 21, 1991, Hon. Vito

J. Titone, Associate Judge of the Court of

Appeals of New York, denied leave to appeal

to the Petitioners. This Petition for a

Writ of Certiorari is filed within the time

prescribed by U.S. Sup.ct. Rule 13, 28

i Sw

CONSTITUTIONAL PROVISIONS INVOLVED

Sixth Amendment:

SIn all criminal

prosecutions, the accused shall

enjoy the right to a speedy and

public trial, by an impartial

jury ***; to be confronted with

the witnesses against him; to

have compulsory process for

-3-

N.Y.

obtaining witnesses in his favor,

and to have the Assistance of

Counsel for his defense."

Fourteenth Amendment:

“xk* nor shall any State

deprive any person of life,

liberty, or property, without due

process of law."

STATUTE INVOLVED

Penal Law §150.10 (McKinney's 1988).

Arson In The Third Degree.

"1. A person is guilty of

arson in the third degree when he

intentionally damages a building

or motor vehicle by starting a

fire or causing an explosion.

DISCIPLINARY RULES OF N.Y. CODE

OF PROFESSIONAL RESPONSIBILITY.

DR 5-101. Refusing Employmen‘’: When

Interests of the Lawyer

The

May

Impair His Independent

Professional Judgment.

"(B) A lawyer shall not

accept employment in contemplated

or pending litigation if he knows

or it is obvious that he or a

lawyer in his firm ought to be

called as a witness ***"

DR 5-102. Withdrawal As Counsel When The

Lawyer Becomes A Witness.

(A) If after undertaking

employment in contemplated or

pending litigation, a lawyer

learns or it is obvious that he

or a lawyer in his firm ought to

be called as a witness on behalf

of his client, he shall withdraw

from the conduct of the trial and

his firm, if any, shall not

continue representation in the

trial, except that he may

continue the representation and

he or a lawyer in his firm may

testify in the circumstances

enumerated in DR 5-101(b) (1)

through (4).

STATEMENT OF THE CASE

On April 20, 1987, at approximately

11:00 P.M., a fire broke out at 171~27

Gladwin Avenue, Queens, New York. An

investigation ensued, after which

Petitioners Phillip Amato, Rita Amato, and

James Raffa, and co-defendants Ugo Serrone

and Michael Scotto, were accused by a

Queens County Grand Jury of committing the

crimes of Burglary in the First and Third

Degrees, and Arson in the Third Degree. In

addition, Petitioner Phillip Amato and co-

defendants Serrano and Scotto were charged

in the same accusatory instrument of

committing the crime of criminal

solicitation.

Pretrial, Petitioner Phillip

Amato moved to suppress statements on the

ground that they were obtained in violation

of his State constitutional right to

counsel (see People v. Skinner, 52 N.Y.2d

24, 436 N.Y.S.2d 207, 417 N.E.2d 501

[Ct.App. 1981]). A hearing was conducted

at which Petitioner Phillip Amato's

retained trial counsel testified to

establish that the statements sought to be

suppressed were obtained by an informant

after Petitioner's right to counsel under

the New York State Constitution had

indelibly attached, viz: the date and time

when he informed law enforcement officials

that he represented Petitioner such that no

- 6 -

eee

statements could be elicited from

Petitioner without counsel's presence. The

court, finding that Petitioner's right to

counsel was violated, ordered suppression.

The court also ordered that retained

counsel, and his law firn, were

disqualified from further representing

Petitioner Phillip Amato, thereby requiring

Petitioner to retain new counsel shortly

before trial.

After pretrial motions were decided,

Petitioners proceeded to trial before Hon.

William D. Friedmann, and a jury. However,

co-defendants Serrone and Scotto waived

their rights to a jury trial. Petitioners

moved to sever their joint trial from the

non-jury joint trial of co-defendant

Serrone and Scotto. The motion to sever

was denied and the court conducted a single

jury/non-jury trial.

The State's case against Petitioners

and co-defendants Serrone and Scotto wa

- 7 «

entirely circumstantial, the most damning

of which came from Joseph Minchella (a

resident of the community and friend of

Petitioners and the co-defendants), whose

role in this case was’ sufficiently

ambiguous that his status as an accomplice

was submitted to the jury as a question of

fact.'

Also relied on by the State was

testimony from the owner of the fired

premises (Mrs. Surinder Arora) concerning,

inter alia, the community's widespread

opposition to the sale or renting of her

: In New York, a conviction may not rest

on the uncorroborated testimony of an

accomplice (N.Y. Crim. Pro. L. §60.22

(McKinneys 1981]}). Subdivision 2 of

section 60.22 defines an accomplice as:

“a witness in ae criminal

action who, according to the

evidence adduced in such action,

may reasonably be considered to

have participated in:

(a) The offense charged; or

(b) An offense based upon the

same or some of the same facts or

conduct which constitute the offense

charged.”

house to New York City for use as a

residential foster care facility for

infants ranging in age from birth to two

years, and several alleged incidents

between her and members of the community,

including Petitioners Phillip Amato, Rita

Amato, and James Raffa, and co-defendant

Michael Scotto, some of which she reported

to the police. To rebut Mrs. Arora's

testimony, the defense subpoenaed the

commander of the police precinct embracing

the neighvorhood in which these incidents

allegedly occurred, as well as the police

reports reflecting the reported incidents

and the precinct's books and records for

the period covering these incidents.

Though police documents were provided

to the defense, the: court declined to

enforce the subpoena requiring the

attendance and testimony of the Precinct

Commander, which the defense expected would

be that, after a diligent search of the

- 9 -

records was conducted, no reports

reflecting the incidents Mrs. Arora

allegedly complained about were found.

Rather, the court would only permit the

defense to cross-examine Mrs. Arora

concerning the absence of the reports.

After hearing evidence from both the

State and the defense, including testimony

from Petitioner Raffa, the jury deliberated

for two days ultimately finding Petitioners

guilty of burglary in the first degree and

arson in the third degree, but not guilty

of burglary in the third degree. However,

prior to the commencement of jury

deliberations, Justice Friedmann dictated

into the record his decision dismissing the

counts of the indictment charging

Petitioners and co-defendants Serrone and

- 10 -

Scotto with burglary in the first and third

degrees.?

feet tas Sodea ie hake) aa Ral ita Seah wae sk

REASONS FOR GRANTING THE WRIT

SUBSTANTIAL ISSUES AFFECTING THE

FAIR ADMINISTRATION OF CRIMINAL

JUSTICE ARE PRESENTED CONCERNING

THE CONDUCT OF JURY/NON-JURY

TRIALS IN THE CONTEXT OF A SINGLE

CRIMINAL TRIAL, THE RIGHT OF AN

ACCUSED TO BE REPRESENTED BY

COUNSEL OF CHOICE, AND THE RIGHT

TO PRESENT A DEFENSE.

This Petition presents’ substantial

issues affecting the fair administration of

criminal justice concerning the conduct of

jury/non-jury trials, the right to counsel

of choice, and the right to present a

defense (see, Rakas v. Illinois, 439 U.S.

128, 130 [1978], reh. denied, 439 U.S. 1122

[1979]). The issues presented are "beyond

the academic or episodic" (Rice v. Sioux

. The state’s appeal of the order

dismissing burglary in the first degree was

ultimately dismissed by the Appellate

Division, on the State’s consent.

- ll1l-

City Cemetery, 349 U.S. 70, 74 [1955]), and

are important "to the public as

distinguished from" being important to the

"particular parties" involved (Layne &

Bowler Corp. v. Western Wel] Works, 261

U.S. 387, 393 [1923]; Rice v. Sioux City

Cemetery, supra, 349 U.S. at p. 79).

Accordingly, certiorari to review the

Decisions and Orders of the Appellate

Division of the Supreme Court of the State

of New York, Second Judicial Department,

affirming Petitioners' convictions of arson

in the third degree, should in all respects

be granted.

A. The Joint Jury/Non-Jury Trial.

At the Appellate Division, as they did

during their trial, Petitioners argued,

inter alia, that their federally guaranteed

rights to a fair trial, confrontation and

cross-examination, were violated by the

procedure adopted by the court for

- 12 -

conducting the combined jury/non-jury trial

in their case. The Appellate Division

rejected these claims, finding that "under

the circumstances of this case, the trial

court exercised its discretion within

ee ee ee

permissible legal limits when it ordered a

joint bench and jury trial, and that the

procedure did not prejudice the defense"

(3a).

ay ne a, Oe ee ee

Prior to trial, the court denied

Petitioners' application for a severance of

the "jury/non-jury defendants" and issued

eke et een PA

an outline of the procedures to be followed

in the examination and cross-examination of

the State's witnesses. According to the

outline, after the State finished its

direct examination, counsel for Petitioners

(the jury defendants) were permitted to

cross-examine in the jury's’ presence

concerning their respective clients. Upon

completion of cross-examination by

Petitioners, the non-jury defendants were

- 13-

iii armas

permitted to cross-examine the State's

witnesses in the jury's absence. The same

procedures were to be followed with

redirect and recross. However, unlike the

jury, Justice Friedmann, who was also

sitting as a trier of fact, had the benefit

of all the direct and all the cross-

examination of the State's witnesses.

As the trial progressed, counsel for

both the jury and non-jury defendants

recognized the inequities in the court's

procedure. For example, counsel protested

that Petitioners (the jury defendants) did

not have the same benefits of cross-

examination as did the non-jury defendants.

Counsel for Petitioners argued that the

jury was hearing direct testimony

concerning the non-jury defendants, who

were charged acting in concert with

Petitioners, _— was not tested during

cross-examination. Yet the court, as the

trier of fact for the non-jury defendants,

- 14 =

a ee ee ee

had the benefit of the entire direct and

entire cross-examination. The court

responded "I don't care. I will have to

give constant instructions to the fact that

they are to disregard anything unless it

has to do with acting in con[{cert]" (T616-

17; emphasis added).

Petitioners' concerns that they were

prejudiced by the court's procedure turned

out to be well-founded. Not only did the

jury miss cross-examination which brought

out inconsistencies in the testimony of the

complainant, the fire marshal who responded

to the scene of the fire to conduct an

investigation shortly after it was

extinguished and then several days later,

and the confidential informant (Joseph

Minchella), who was cooperating with the

Prosecutor's Office to avoid prosecution,

but the court's promise that counsel for

Petitioners could recross those witnesses

became illusory when the promise was

- 15 -

conditioned upon redirect first being

conducted by the Assistant Prosecutor.

With specific regard to Joseph

Minchella, the Petitioners requested that

the non-jury defendants cross-examine

first, or that the jury hear the non-jury

defendants' cross-examination of him. The

requests were made because of Minchella's

importance to the State's case. Not only

were these applications denied, thereby

requiring the Petitioners to cross-examine

first, but their right to re-cross was

short-circuited when the Assistant

Prosecutor announced, "there is going to be

no redirect, Your Honor" (71688-89) .

In California v. Green, 399 U.S. 149,

158 (1970), this Court explained that the

Confrontation Clause of the Sixth

Amendment,

"(1) insures that the

witness will give his statements

under oath -- thus impressing him

with the seriousness of the

matter and guarding against the

- 16 =-

eed

ee

lie by the possibility of a

penalty for perjury; (2) forces

the witness to submit to cross-

examination, the ‘greatest legal

engine ever invented for the

discovery of truth'; (3) permits

the jury that is to decide the

defendant's fate to observe the

demeanor of the witness making

his statement, thus aiding the

jury in assessing his

credibility."

With few exceptions (see, e.g., Bruton

v. United States, 391 U.S. 123 [1968]), the

law has preferred joint trials rather than

severance of defendants because joint

trials promote judicial economy and

efficiency in the administration of

criminal justice (see Richardson v. Marsh,

481 U.S. 200, 210 (1987); People v.

Mahboubian, 74 N.Y¥.2d 174, 183, 544

N.Y¥.S.2d 769, 773, 543 N.E.2d 34 [Ct.Ap.

1989]). To this end, the law has generally

recognized the propriety of multiple juries

at the joint criminal trial of multiple

defendants and the propriety of jury/non-

jury trials in the context of a single

-17-<-

criminal trial (see United States v.

LeBron-Gonzalez, 816 F.2d 823 [1st Cir.

1987); Smith v. DeRobertis, 758 F.2d 1151,

1152 [7th Cir. 1985} [citing cases); Ynited

States v. Lewis, 716 F.2d 16 (D.C.Cir.

1983}, cert. denied, 464 U.S. 996 [1983];

United States v. Gonzalez, 610 F.Supp. 568

[D.Puerto Rico 1985]; People v. Ricardo B.,

73 N.Y.2d 228, 538 N.Y.S.2d 796, 535 N.E.2d

1336 [Ct.App. 1989]; People v. Wallace, 153

A.D.2d 59, 549 N.Y¥.S.2d 515 (A.D. 2d Dept.

1989], app. denied, 75 N.Y¥.2d 925, 555

N.Y.S.2d 44, 554 N.E.2d 81 [Ct.App. 1990)).

Viewed as a “partial form of severance"

(People v. Ricardo B., supra, 73 N.¥.2d at

p. 233, 538 N.Y.S.2d at p. 798), multiple

juries are most frequently utilized in

cases where Bruton-type problems would

otherwise require severance (see United

States v. Gonzalez, supra 610 F.Supp. 568).

Unquestionably, multiple juries,

including the use of a jury/non-jury

—_ - 18 -

procedure, is an innovative answer to the

problems of court congestion and scarcity

of judicial resources. In Smith v.

DiRobertis, supra, 758 F.2d at p. 1152, the

Seventh Circuit said,

"(ajlthough the double-jury is an

innovation with nothing more to

recommend it than a saving in

trial time, judicial economy is

not a trivial goal in this era of

massive caseloads; and the

Supreme Court *** has shown that

it is receptive to innovations

designed to reduce the hich costs

of jury trials. ***

Of course, if the particular

innovation increased the risk of

convicting the innocent, this

would be a high price to pay for

some modest savings in the costs

of trials."

The growing concern over the ability

of the judiciary to cope with burgeoning

criminal dockets will inevitably lead to

the more frequent use of multiple juries or

jury/non-jury trials. However, as noted by

the Second Circuit in an analogous context,

"there are limits to the risks" a defendant

must endure “in order to secure the public

- 19 -

benefits of savings in costs, time and

judicial resources and of reduced burdens

on disinterested witnesses" (United States

v. Figueroa, 618 F.2d 934, 944 [2d Cir.

1980}).

In the case at bar, Petitioners were

denied the same benefits of cross-

examination accorded to their non-jury co-

defendants, in that information was brought

to the attention of Justice Friedmann in

his capacity as the non-jury trier of facts

which was not brought to the jury's

attention, notwithstanding that the non-

jury co-defendants were charged acting in

concert with Petitioners. Moreover, the

Jj) sy, unlike Justice Friedmann, had an

abbre.iated opportunity to observe the

demeanor of the witnesses during their

testimony (see Mattox v. United States, 156

U.S. 237, 242-43 [1895]; California v.

Green, supra, 399 U.S. at p. 158).

- 20 -

Certiorari should be granted to review

the procedures employed in this case and to

set guidelines for future jury/non-jury and

multiple jury trials to ensure against the

dilution of the accused's fundamental

rights to a fair trial and to his rights of

confrontation and cross-examination.

B. Petitioner Phillip Amato's Right To

Counsel of Choice

In Wheat v. United States, 486 U.S.

153, 159 (1988), this Court recognized that

the right to select and be represented by

one's preferred attorney is a component of

the Sixth Amendment right to counsel.

However, that right is subject to

limitations (Id.; United States Vv.

Monsanto, 491 U.S. 600 [1989]; Caplin &

Drysdale, Chartered v. United States, 491

U.S. 617 [1989}).

One such limitation in New York is the

so-called "“advocate-witness" rule embodied

in Disciplinary Rules 5-101(B) and 5-102 of

- 21-

the Code of Professional Responsibility.

As interpreted by the New York Court of

Appeals, the rule “generally requires the

lawyer to withdraw from employment when it

appears that he or a member of his firm

will be called to testify regarcing a

disputed issue of fact ***, Thus, once

representation is undertaken, the lawyer

must withdraw as advocate if it appears

that he must testify on behalf of his own

client *** or if it appears that he will be

called as a witness to testify for the

adverse party, where his testimony may be

prejudicial to the client he is

representing” (People v. Paperno, 54 N.Y.2d

294, 299-300 445 N.Y.S.2d 119, 122, 429

N.E.2d 797 [Ct. App. 1981]}).

In this regard, the Court of Appeals

recognizing the fundamental nature of the

right to counsel of-choice said that,

"(t)he Code of Professional

Responsibility establishes

ethical standards that guide

= 22a «&

attorneys in their professional

conduct, and its importance is

not to be dismissed or denigrated

by indifference ***, When raised

in litigation, however -- which

in addition to matters of

professional conduct directly

involves the interests of clients

and others -- the Code provisions

cannot be applied as if they were

controlling statutory or

decisional law" (S_ & S Hote] v.

777_ S.-H. Corp., 69 N.Y.2d 437,

443, 515 N.Y¥Y.S.2d 735, 738, 508

N.E.2d 647 [Ct.App. 1987);

emphasis added).

In this case, the trial court

disqualified Petitioner Phillip Amato's

retained counsel, and his’ firn, from

representing him at trial, essentially

because counsel testified at a pre-trial

hearing in support of Petitioner's motion

to suppress statements. The court

explained that

"(trial counsel } could

become a witness at trial even

though the statements *** were

suppressed, should Phillip Amato

testify at the trial, as those

statements could then be used to

impeach Phillip Amato's

testimony, and thus the

voluntariness of the statements

- 23 -

pursuant to CPL §60.45 would be

at issue."

The court's concern was entirely misplaced

because, under New York law, the question

of voluntariness did not include’ the

concerns mentioned by the court (see People

v. Bing, 76 N.Y.2d 331, 337, 346-48, 351,

358, 361, 559 N.Y.S.2d 474, 476-77, 482-

484, 485-86, 490, 492, 558 N.E.2d 1011

[Ct.App. 1990]). Consequently, trial

counsel simply could not have been a

witness had Petitioner elected to testify.

As it turned out, Petitioner Phillip

Amato not only did not testify on his own

behalf but, when called as a witness by his

wife, Petitioner Rita Amato, he exercised

his privilege against self-incrimination

and refused to testify on her behalf. Even

before trial, the court was well-aware that

Petitioner Phillip Amato was not going to

testify because, in conjunction with her

motion to sever, Petitioner Rita Amato

- 24 -

submitted a supporting affidavit in which

she alleged that her husband "does not

intend to testify on his own behalf at a

joint trial [and] has further advised me

that should I call him as a witness in my

behalf, he will not voluntarily testify and

waive any of his rights under the Fifth

Amendment to the U.S. Constitution."

A second justification for

disqualification came after trial -- a

justification which was unknown to the

court when trial counsel and his firm were

disqualified and, indeed was not’ even

identified by the court as a reason in its

Memorandum Decision. The justification,

found to be persuasive by the Appellate

Division, was that Petitioner Phillip

Amato's substitute counsel called as a

witness former counsel's law partner. A

review of that defense witness' testimony,

however, reveals that it was confined to

reciting historical facts which were

- 25 -

undisputed, viz: that his and trial

counsel's firm had represented an

organization, of which Petitioners were

members, in its legal efforts to block New

York City from opening a foster care

facility in their neighborhood. Though the

testimony was background to explain the

context in which the arson was allgedly

committed, the testimony bore no relevance

to the question of Petitioners' guilt or

innocence. In short, when trial counsel

and his firm were disqualified from further

representation, the court had no reason to

believe that a member of trial counsel's

firm would be called as a witness.

Since the Court's 1988 ruling in Wheat

Vv. United States, supra, motions to

disqualify defense counsel have been made,

and granted, with greater frequency (see

Frost, "Lawyers Disqualified in Gotti

Prosecution. Conflicts, Advocate-Witness

Rules Cited," New York Law Journal,

- 26 -

7/29/91, pe. 1). Indeed, the “advocate-

witness" rule was relied upon as a basis

for disqualifying counsel in a notorious

case on the government's motion (see,

F.Supp. __—_—s«séW(E«.D.N.Y. 1991] [New York Law

Journal, 8/5/91, p. 21)). Certiorari

should be granted to review the

circumstances under which the "“advocate-

witness" rule may be successfully invoked

as a limitation on a criminal defendant's

right to counsel of choice.

Cc. Petitioner's Right To Compulsory

Process.

As part of their defense, Petitioners

subpoenaed the Commander of the Police

Precinct at which the complainant testified

she filed complaints against several

members of the Gladwin Avenue community.

The purpose of her testimony was to

establish that there was snivansin eenlank

her and her family antedating the fire at

- 27 «

her house. That animosity, according to

the prosecution, provided a motive for the

arson.

To rebut her testimony on this issue,

and to establish her bias against then,

Petitioners sought the testimony of the

precinct commander which they expected

would be that the complainant did not file

those complaints. The court declined to

enforce the subpoena requiring the precinct

commander's attendance, and instead

instructed Petitioners that were to rely on

cross-examination of the complainant using

police documents, furnished pursuant to

subpoena, showing that the complaints were

not filed.

Recognizing the wide discretion

efforded trial courts concerning the

admission of evidence, this Court in Crane

v. Kentucky, 476 U.S. 683, 690 (1986) said

that

- 28 -

"“(w)hether rooted directly

in the Due Process Clause of the

Fourteenth Amendment *** or in

the Compulsory Process or

Confrontation clauses of the

Sixth Amendment kak the

Constitution guarantees criminal

defendants ‘a meaningful

opportunity to present a complete

defense.'"

In United States v. Abel, 469 U.S. 45,

52 (1984), this Court unequivocally

recognized the importance of evidence of a

witness' bias, noting that, "[{t]he ‘common

law of evidence' allowed the showing of

bias by extrinsic evidence, while requiring

the cross-examiner to ‘take the answer of

the witness' with respect to less favored

forms of impeachment."

| In the case at bar, Petitioners were

denied their federally guaranteed rights to

present a complete defense and compulsory

process, being relegated "to less favored

forms of impeachment" (Id.), to establish

the complainant's bias against then.

- 29 -

Certiorari should be granted to review

whether Petitioners' federally guaranteed

rights to fairness in presenting their

defense were violated by the trial court's

seemingly arbitrary refusal to enforce a

subpoena against a potential significant

defense witness.

CONCLUSION

FOR THE REASONS STATED, THE

PETITION FOR A WRIT OF CERTIORARI

SHOULD BE GRANTED.

Dated: New York, New York

November 19, 1991

Respectfully submitted,

RICHARD E. MISCHEL, P.C.

Attorney for Petitioners

Phillip Amato, Rita Amato,

and James Raffa

225 Broadway, Suite 2199

New York, New York 10007

(212) 227-7040

RICHARD E. MISCHEL, ESQ.

- Of Counsel -

- 30 -

APPENDIX

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SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL

DEPARTMENT

DECISION & ORDER

Argued - December 17, 1990

AD2d

LAWRENCE J. BRACKEN, J.P.

SYBIL HART KOOPER

THOMAS R. SULLIVAN

CORNELIUS J. O'BRIEN, JJ.

1887E

The People, etc., respondent,

v Phillip Amato, appellant.

(Ind. No. 3047/87)

Richard E. Mischel, P.C., New York, N.Y., for appellant

John J. Santucci, District Attorney, Kew Gardens, N.Y.

(John Castellano of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme

Court, Queens County (Friedmann, J.), rendered September 9,

1988, convicting him of arson in the third degree, upon a jury

verdict, and imposing sentence.

ORDERED that the judgment is affirmed, and the matter is

remitted to the Supreme Court, Queens County, for further

proceedings pursuant to CPL 460.50(5).

2a

Contrary to the defendant's contention, we find that his guilt

of arson in the third degree was established beyond a

reasonable doubt. The evidence adduced at trial established

that on the night of April 20, 1987, a fire broke out at 171-27

Gladwin Avenue, Queens, a private one-family residence which

had recently been leased by its owner to the City of New York

for the purpose of housing foster children. The defendants

Phillip and Rita Amato and James Raffa owned homes on

Gladwin Avenue, and were active in neighborhood associations

formed to oppose the city's plans. To this end they succeeded

in obtaining a temporary restraining order enjoining the city

from occupying the house, but had also, on several occasions

prior to the actual fire, threatened to-burn the house down.

The evidence further showed that on the night of the fire, as

the codefendant Rita Amato gathered with her codefendants

and other neighbors on the lawn across from the subject

premises, she helped to lure the city's security guard from the

home, told an uninvolved neighbor to stay inside his home, and

then telephoned a television news station to tell them the house

might be burned down. The defendant Phillip Amato, after

directing Michael Scotto and another neighbor to act as

lookouts, joined with the codefendant Jamés Raffa, who was

concealing a bottle of clear liquid under his jacket, and the

codefendant Ugo Serrone, and walked into the rear yard of the

property adjoining the subject house. The sound of glass

breaking was heard shortly thereafter, and the house was soon

filled with smoke and flames. As the building was blazing, the

defendants stood watching from across the street, some toasting

the fire with glasses of liquor. An investigation revealed that

the fire was intentionally set by use of a flammable liquid.

Viewing this circumstantial evidence in the light most

favorable to the People (see, People v Contes, 60 NY2d 620),

we conclude that the facts from which the jury could infer the

defendant's guilt were inconsistent with his innocence and

3a

excluded to a moral certainty every other reasonable hypothesis

but guilt (see, People v Betancourt, 68 NY2d 707; People v

Giuliano, 65 NY2d 766). Moreover, upon the exercise of our

factual review power, we are satisfied that the verdict was not

against the weight of the evidence (see, CPL 470,.15[5)).

The codefendants Michael Scotto and Ugo Serrone waived

their right to a jury trial and the remaining defendants moved

for severance. Contrary to the defendant's contention on

appeal, we do not find that the court's denial of his motion for

a severance was an improvident exercise of discretion, or that

the joint trial violated his rights under the Confrontation Clause.

The evidence against all five defendants, who were charged with

acting in concert, was essentially identical, and the defendant

failed to proffer the requisite "cogent reasons" (People v

Bornholdt, 33 NY2d 75, 87, cert denied sub nom. Victory v New

York, 416 US 905) to warrant separate trials (see, People v

Mahboubian, 74 NY2d 174, 183). Moreover, we find that

under the circumstances of this case, the trial court exercised

its discretion within permissible legal limits when it ordered a

joint bench and jury trial, and that the procedure did not

prejudice the defense (see, People v Wallace, 153 AD2d 59; see

also, People v Ricardo B., 73 NY2d 228).

The defendant also contends that the ~ourt violated his

constitutional right to counsel of his own choice when it dis-

qualified the law firm he had originally retained, after a mem-

ber of that firm testified at a pretrial hearing. We disagree.

The right to counsel of one's own choosing is not absolute

but may be overridden where necessary (see, S & S Hotel

Ventures Ltd. Partnership v 777 S.H. Corp., 69 NY2d 437;

People v Arroyave, 49 NY2d 264). One restriction on the right

is the so-called "advocate-witness rules". This rule is embodied

in the provision of Code of Professional Responsibility, DR 5-

101(B) and 5-102, and generally requires counsel to withdraw

4a

from employment when it appears that he or a member of his

firm will be called as a witness to testify regarding a disputed

issue of fact (see, e.g., United States v DeFazio, 899 F2d 626;

United States v Cunningham, 672 F2d 1064, cert denied 466

US 951).

In this case, the defendant claims that a member of the law

firm which he retained to defend him at tral had contacted

investigators and had advised them of his representation of the

defendant, and that these investigators nevertheless continued

to question the defendant. The attorney in question testified at

the pretrial hearing on this issue. Although the court granted

the defendant's motion to suppress to the extent that it was

premised on this argument, the People indicated an intent to

use the illegally obtained statement in order to impeach the

defendant should he testify at trial.

Under these circumstances, the tral court was

understandably concerned with the prospect that the propriety

of the defendant's incriminating statements might still surface

as an issue at trial, leading to the possibility that the

defendant's trial counsel would have to testify. The propriety

of the trial court's ruling was later borne out when a member

of the law firm in question in fact testified at the trial. Under

these circumstances, we conclude that the trial court did not err

or improvidently exercise its discretion in disqualifying the

defendant's attorney.

We have examined the defendant's remaining contentions

and find them to be without ment.

BRACKEN, J.P., KOOPER, SULLIVAN and O'BRIEN, JJ., concur.

ENTER:

Martin H. Brownstein

Clerk

Da

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL

DEPARTMENT

DECISION & ORDER

Argued - December 17, 1990

AD2d

LAWRENCE J. BRACKEN, J.P.

SYBIL HART KOOPER

THOMAS R. SULLIVAN

CORNELIUS J. O'BRIEN, JJ.

1888E

The People, etc., respondent,

v Rita Amato, appellant.

(Ind. No. 3047/87)

Schapiro and Reich, Lindenhurst, N.Y. (Perry S. Reich of

counsel), for appellant.

John J. Santucci, District Attorney, Kew Gardens, N.Y.

(John Castellano of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme

Court, Queens County (Friedmann, J.), rendered September 9,

1988, convicting her of arson in the third degree, upon a jury

verdict, and imposing sentence.

ORDERED that the judgment is affirmed, and the matter is

remitted to the Supreme Court, Queens County, for further

proceedings pursuant to CPL 460.50(5).

6a

We have considered and rejected most of the contentions

raised by the defendant upon the appeal by her codefendant

Phillip Amato, with whom this defendant was jointly tried (see,

People v Amato, ___AD2d____[decided herewith]). The

defendant has not raised any arguments requiring a different

result.

BRACKEN, J.P., KOOPER, SULLIVAN and O'BRIEN, JJ., concur.

ENTER:

Martin H. Brownstein

Clerk

Ta

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL

DEPARTMENT

DECISION & ORDER

Argued - December 17, 1990

AD2d

LAWRENCE J. BRACKEN, J.P.

SYBIL HART KOOPER

THOMAS R. SULLIVAN

CORNELIUS J. O'BRIEN, JJ.

1889E

The People, etc., respondent,

v James Raffa, appellant.

(Ind. No. 3047/87)

Eugene B. Nathanson, Brooklyn, N.Y., for appellant.

John J. Santucci, District Attorney, Kew Gardens, N.Y.

(John Castellano of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme

Court, Queens County (Friedmann, J.), rendered September 9,

1988, convicting him of arson in the third degree, upon a jury

verdict, and imposing sentence.

ORDERED that the judgment is affirmed, and the matter is

remitted to the Supreme Court, Queens County, for further

proceedings pursuant to CPL 460.50(5).

8a

We have considered and rejected most of the contentions

raised by the defendant upon the appeal by his codefendant

Phillip Amato, with whom this defendant was jointly tried (see,

People v Amato, ___AD2d___[decided herewith]). The

defendant has not raised any arguments requiring a different

result.

In addition, we note that we agree with the defendant that

the court erred in precluding him from questioning Fire

Marshal John Carney regarding a prior inconsistent statement

made to him by Joseph Minchella, which, at trial, Minchella

denied making (see, Richardson, Evidence, §§ 501, 502

[Prince 10th ed]). However, in light of the overwhelming

evidence of the defendant's guilt adduced at the trial, the error

was harmless (see, People v Crimmins, 36 NY2d 230).

BRACKEN, J.P., KOOPER, SULLIVAN and O'BRIEN, JJ., concur.

ENTER:

Martin H. Brownstein

Clerk

9a

STATE OF NEW YORK

COURT OF APPEALS

CERTIFICATE DENYING LEAVE UPON RECONSIDERATION

BEFORE: How. Vito J. TITONE Associate Judge

THE PEOPLE OF THE STATE OF NEW YORK

Respondent,

against

PHILLIP AMATO,

Appellant.

I, VITO J. TITONE, Associate Judge of the Court of

Appeals of the State of New York, do hereby certify that, upon

application timely made by the above-named appellant for a

certificate pursuant to CPL 460.20 and upon the record and

proceedings herein,* there is no question of law presented

which ought to be reviewed by the Court of Appeals and

permission to appeal is hereby denied.

Dated at Staten Island, New York

August 21, 1991

Associate Judge

Order of Appellate Division, Second Department dated

May 28, 1991, affirming a judgment of Supreme Court,

Queens County rendered September 9, 1988.

*Description of Order

10a

STATE OF NEW YORK

COURT OF APPEALS

CERTIFICATE DENYING LEAVE UPON RECONSIDERATION

BEFORE: Hon. Vito J. TITONE Associate Judge

THE PEOPLE OF THE STATE OF NEW YORK

Respondent,

against

RITA AMATO,

Appellant.

I, VITO J. TITONE, Associate Judge of the Court of

Appeals of the State of New York, do hereby certify that, upon

application timely made by the above-named appellant for a

certificate pursuant to CPL 460.20 and upon the record and

proceedings herein,* there is no question of law presented

which ought to be reviewed by the Court of Appeals and

permission to appeal is hereby denied.

Dated at Staten Island, New York

August 21, 1991

Associate Judge

Order of Appellate Division, Second Department dated

May 28, 1991, affirming a judgment of Supreme Court,

Queens County rendered September 9, 1988.

*Description of Order

STATE OF NEW YORK

COURT OF APPEALS

CERTIFICATE DENYING LEAVE UPON RECONSIDERATION

BEFORE: Hon. Vitro J. TITONE Associate Judge

THE PEOPLE OF THE STATE OF NEW YORK

Respondent,

against

JAMES RAFFA,

Appellant.

I, VITO J. TITONE, Associate Judge of the Court of

Appeals of the State of New York, do hereby certify that, upon

application timely nade by the above-named appellant for a

certificate pursuant to CPL 460.20 and upon the record and

proceedings herein,” there is no question of law presented

which ought to be reviewed by the Court of Appeals and

permission to appeal is hereby denied.

Dated at Staten Island, New York

August 21, 1991

Associate Judge

Order of Appellate Division, Second Department dated

May 28, 1991, affirming a judgment of Supreme Court,

Queens County rendered September 9, 1988.

*Description of Order