New York Law Review

Tag: People v. DePallo

  • People v. DePallo, 96 N.Y.2d 357 (2001): Attorney’s Duty When Client Intends to Perjure Themselves

    People v. DePallo, 96 N.Y.2d 357 (2001)

    When a criminal defendant intends to commit perjury, defense counsel’s disclosure of an ethical dilemma to the court, without revealing client confidences, does not deprive the defendant of a fair hearing or effective assistance of counsel; the attorney must first try to dissuade the client and can disclose the intent to commit a crime to the court.

    Summary

    DePallo was convicted of second-degree murder. Prior to a Huntley hearing, his attorney sought to withdraw due to an ethical conflict, suggesting the client intended to perjure himself. The court denied the motion. The attorney then informed the court, outside the defendant’s presence, that the defendant would testify in narrative form. The defendant testified and his motion to suppress was denied because his testimony was not credible. The New York Court of Appeals affirmed the conviction, holding that counsel’s actions appropriately balanced their duty to the client and the court, and the defendant’s right to be present was not violated. This case clarifies the attorney’s responsibilities when facing potential client perjury in a bench trial setting.

    Facts

    The defendant became enraged when he heard rumors that a woman with whom he had a sexual relationship was infected with HIV. The defendant, with the aid of a 14-year-old, confronted the woman, and a fight ensued. Subsequently, the defendant and the 14-year-old lured the woman to an isolated area where the defendant choked her with a bandana, and he and the 14-year-old stabbed her, killing her. The defendant was arrested and gave written and videotaped statements admitting to acting in concert with the 14-year-old in killing the woman.

    Procedural History

    The defendant moved to suppress his confessions, leading to a Huntley hearing. Before the hearing, the attorney asked to be relieved, citing an ethical conflict. The court denied the request. The defendant testified at the hearing, and the court denied the motion to suppress. The jury convicted the defendant of second-degree murder, and he was sentenced to 25 years to life. The Appellate Division affirmed. The New York Court of Appeals affirmed the conviction.

    Issue(s)

    Whether defense counsel’s disclosure to the court of an ethical dilemma, stemming from the defendant’s intent to testify, and decision to allow the defendant to testify in narrative form, deprived the defendant of a fair hearing and the effective assistance of counsel.

    Holding

    No, because the defense counsel properly balanced his duties to his client with his duties to the court and the criminal justice system, and the defendant was not deprived of a fair hearing or the effective assistance of counsel. Also, the defendant’s right to be present was not violated because the colloquy involved procedural matters at which the defendant could offer no meaningful input.

    Court’s Reasoning

    The Court of Appeals reasoned that a defense attorney’s duty to zealously represent a client is limited by their duty as an officer of the court to ensure the truth-seeking function of the justice system. An attorney cannot assist a client in presenting false evidence. The court noted the requirements of the Code of Professional Responsibility, preventing attorneys from knowingly using perjured testimony or false evidence. When faced with a client who intends to commit perjury, the attorney must first attempt to dissuade the client. If that fails, the attorney may seek to withdraw or, if withdrawal is denied, allow the client to testify in narrative form without the attorney eliciting the testimony in a traditional question-and-answer format, and counsel may not use the perjured testimony in making argument to the court. The court found that here, the defense counsel properly advised the defendant against lying on the witness stand, and when the defendant insisted on testifying, the attorney properly sought to withdraw. The court held that informing the court about the ethical dilemma did not violate the defendant’s rights, as the attorney never disclosed client confidences. The court stated, “Counsel could have properly made such a disclosure since a client’s intent to commit a crime is not a protected confidence or secret.” The court rejected the suggestion that counsel should have remained silent while the client committed perjury, stating that such an approach is incompatible with counsel’s role as an officer of the court. The court noted it was proper to exclude the defendant from the discussion on how to handle the testimony because “a colloquy of this nature involves procedural matters at which a defendant can offer no meaningful input.”

  • People v. DePallo, 96 N.Y.2d 437 (2001): Defense Counsel’s Duty When Client Intends to Commit Perjury

    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.”