# Petition for Writ of Certiorari — Amato v. New York

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1992
- **Citation:** 502 U.S. 1058

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_2049%3A1. Public record. Not legal advice.