96 N.Y.2d 437 (2001)
When a criminal defendant insists on committing perjury, defense counsel acts appropriately by informing the court of the situation, allowing the defendant to testify in narrative form, and refraining from referring to the perjured testimony during summation.
Summary
DePallo was convicted of murder and robbery. Prior to trial, he admitted involvement in the crime to his attorney but later insisted on testifying that he was home the entire evening. His attorney, believing this testimony would be perjury, informed the court. At trial, DePallo testified in narrative form without direct questioning from his counsel. His attorney did not mention the testimony during closing arguments. The New York Court of Appeals affirmed the conviction, holding that the attorney acted ethically and did not deprive the defendant of effective assistance of counsel. The court clarified a defense attorney’s duty when confronted with a client intending to commit perjury, balancing zealous advocacy with the duty to the court.
Facts
DePallo and accomplices attacked and killed a 71-year-old man. DePallo’s blood and fingerprint were found at the crime scene, and he made incriminating statements to the police. He later admitted during pretrial proceedings that he had forced an accomplice to participate under threat of death. At trial, DePallo’s attorney advised him not to testify, but DePallo insisted. He then testified he was home the night of the murder, contradicting his earlier statements.
Procedural History
DePallo was convicted of second-degree murder (intentional and felony murder), first-degree robbery, and first-degree burglary. The Appellate Division affirmed. A judge of the Court of Appeals granted leave to appeal. The New York Court of Appeals then affirmed the Appellate Division’s decision, upholding the conviction.
Issue(s)
1. Whether defense counsel’s disclosure to the court of the defendant’s intent to commit perjury constituted ineffective assistance of counsel.
2. Whether the defendant’s right to be present during a material stage of trial was violated by his absence from the ex parte communication between the court and his attorney.
Holding
1. No, because defense counsel appropriately balanced the duty to zealously represent the client with the duty to prevent fraud upon the court.
2. No, because the ex parte communication was merely procedural and had no bearing on the defendant’s ability to defend against the charges.
Court’s Reasoning
The Court reasoned that a defendant does not have a right to commit perjury, and the Sixth Amendment does not compel counsel to assist in presenting perjured testimony. Defense counsel has a duty to zealously represent a client, but that duty is circumscribed by the duty to comply with the law and prevent fraud upon the court. The court cited DR 7-102 of the New York Code of Professional Responsibility, which prohibits an attorney from knowingly using perjured testimony or false evidence. The court noted that counsel first tried to dissuade DePallo from testifying falsely. Once DePallo insisted, counsel properly notified the court. The Court distinguished this case from situations where the disclosure of perjury occurs during a bench trial. Regarding the defendant’s absence from the ex parte communication, the Court held that the proceeding was procedural and did not require DePallo’s presence, as it involved matters of law with no potential for meaningful input from the defendant. The Court cited Nix v. Whiteside, 475 U.S. 157 (1986), stating, “[S]ince there has been no breach of any recognized professional duty, it follows that there can be no deprivation of the right to assistance of counsel.”