New York Law Review

Tag: People v. Ferrara

  • People v. Ferrara, 80 N.Y.2d 672 (1993): Appearance of Impropriety and Right to Counsel

    People v. Ferrara, 80 N.Y.2d 672 (1993)

    The appearance of impropriety, standing alone, is not grounds for disqualification of counsel unless it creates a substantial risk of an abuse of confidence or actual prejudice to the defendant.

    Summary

    Ferrara was convicted of sex offenses. He argued his conviction should be vacated because his attorney was a part-time Village Prosecutor, creating an appearance of impropriety and compromising his right to effective assistance of counsel. The New York Court of Appeals affirmed the conviction, holding that the attorney’s limited role as Village Prosecutor, with no connection to the District Attorney’s office prosecuting Ferrara’s case, did not create a substantial risk of abuse of confidence or actual prejudice, and therefore did not violate Ferrara’s right to counsel.

    Facts

    Ferrara was prosecuted by the Erie County District Attorney’s office for sex offenses.
    Ferrara was represented by Daniel J. Henry, Jr.
    Henry was a part-time Village Prosecutor for the Village of Blasdell.
    Henry’s authority as Village Prosecutor was limited to traffic violations (except misdemeanors), village ordinance violations, and Penal Law violations (excluding felonies and misdemeanors).
    Henry was not an employee of the Erie County District Attorney’s office and had no access to its files or resources.
    Henry was not empowered to prosecute the crimes Ferrara was charged with.

    Procedural History

    Ferrara was convicted on all counts in the trial court.
    Ferrara moved to vacate his judgment of conviction under CPL 440.10, arguing his right to counsel was violated.
    Supreme Court denied the motion.
    The Appellate Division affirmed the Supreme Court’s decision.
    The New York Court of Appeals affirmed the Appellate Division’s order.

    Issue(s)

    Whether a criminal defendant’s right to counsel is violated when their attorney is a part-time Village Prosecutor with no direct connection to the District Attorney’s office prosecuting the case, based on the appearance of impropriety.

    Holding

    No, because the attorney’s role as a part-time Village Prosecutor, with no connection to the District Attorney’s office prosecuting the defendant, did not create a substantial risk of abuse of confidence or actual prejudice to the defendant.

    Court’s Reasoning

    The Court of Appeals distinguished this case from People v. Shinkle, where an attorney who had actively participated in the defendant’s defense later became employed by the District Attorney’s office prosecuting the same defendant. In Shinkle, the court found an unacceptable appearance of impropriety and a risk of abuse of confidence.

    The court emphasized that disqualification is required only when there is a “risk of prejudice attendant on the abuse of confidence.” Shinkle, 51 N.Y.2d at 421. The appearance of impropriety alone is insufficient.

    The court quoted Matter of Schumer v. Holtzman, 60 N.Y.2d 46, 55, stating that “The objector should demonstrate actual prejudice or so substantial a risk thereof as could not be ignored”.

    In Ferrara’s case, the court found no opportunity for abuse of confidences. Henry, the defense attorney, could not prosecute the crimes Ferrara was charged with, did not try cases in the same court, did not work with the same law enforcement personnel, and was not supervised by or in communication with the District Attorney’s office. The connection between Henry’s role as Village Prosecutor and the District Attorney’s office was “so tenuous that it did not signal a risk of prejudice to defendant.”

    The court also addressed the New York State Bar Association Committee on Professional Ethics Opinion No. 544 (1982), noting that ethical opinions do not have the effect of law. Instead, disciplinary rules are guidelines to be applied with due regard for the broad range of interests at stake.

    Thus, the court reiterated that the test remained whether there was actual prejudice or a substantial risk of prejudice, which was not established in this case.

  • People v. Ferrara, 54 N.Y.2d 478 (1981): Right to Counsel Does Not Extend to Planning New Crimes

    People v. Ferrara, 54 N.Y.2d 478 (1981)

    The right to counsel does not extend to protecting an individual from investigative techniques that capture the planning or solicitation of a new crime, even if the individual has retained counsel in connection with the investigation of earlier, separate criminality.

    Summary

    Ferrara, under investigation for nursing home fraud and represented by counsel, was recorded offering kickbacks to a nursing home operator (Sreter) cooperating with the prosecution. He was subsequently indicted for perjury based on his grand jury testimony denying such activities, which contradicted the recordings. The New York Court of Appeals held that the recordings were admissible, finding no violation of Ferrara’s right to counsel. The court reasoned that the right to counsel is a shield, not a license to commit new crimes, and does not extend to protecting individuals engaged in planning or executing new criminal activity, even if they have retained counsel for a separate, ongoing investigation.

    Facts

    Defendant Ferrara, co-owner of a linen supply company, was investigated for paying kickbacks to nursing homes. He appeared before a grand jury twice, with immunity, denying any kickback schemes. After retaining counsel, the prosecutor learned that Ferrara’s former employer also engaged in kickbacks, strengthening the perjury case. Simultaneously, nursing home operator Sreter, facing criminal charges, agreed to cooperate with the prosecution. Sreter informed the prosecutor that Ferrara’s company serviced one of his nursing homes. Sreter then met with Ferrara, who, unaware that Sreter was cooperating with the authorities and equipped with a recording device, offered Sreter kickbacks to obtain business for another nursing home owned by Sreter. Ferrara assured Sreter such deals would not be revealed and that he was very careful in conducting illicit transactions. Ferrara was then called before a third grand jury and again denied making kickback arrangements with Sreter, leading to his indictment for perjury.

    Procedural History

    Ferrara was indicted on four counts of perjury. He moved to dismiss the indictment and suppress the Sreter conversations, which was denied. After a jury trial, he was acquitted on one count but convicted on the other three. The Appellate Division affirmed the conviction, and Ferrara appealed to the New York Court of Appeals.

    Issue(s)

    Whether the prosecutor violated Defendant’s right to counsel by arranging to record conversations between Defendant and a cooperating witness, during which Defendant offered a kickback, after Defendant had retained counsel in connection with a Grand Jury investigation into prior, separate alleged criminal activity.

    Holding

    No, because the right to counsel does not extend to protecting an individual from investigative techniques that capture the planning or solicitation of a new crime, even if the individual has retained counsel in connection with the investigation of earlier, separate criminality.

    Court’s Reasoning

    The Court of Appeals distinguished this case from Massiah v. United States and United States v. Henry, where post-indictment admissions obtained through informants were used to convict defendants of prior crimes. Here, the perjury had not yet occurred, and no charges had been filed. The court emphasized that use of undercover operatives to investigate criminal activity prior to the commission of the charged crime does not violate the Sixth Amendment. The court also distinguished People v. Skinner, where the defendant was represented by counsel specifically on the matter about which he was questioned. The court stated that the right to counsel is meant to be “a shield against what may well be the coercive influences of the State,” not “to immunize one represented by an attorney against investigative techniques that capture a new crime in progress.” The court emphasized that Ferrara initiated the offer of kickbacks to Sreter. The court declined to recognize a right to the presence of counsel while an individual commits, plans, or solicits the commission of a new crime merely because the individual has retained counsel during the investigation of earlier criminality. The court reasoned that extending the right to counsel to these circumstances would distort the rule’s purpose.

  • People v. Ferrara, 27 N.Y.2d 100 (1970): Retroactivity of Jury Trial Right for Crimes Punishable by Over Six Months

    People v. Ferrara, 27 N.Y.2d 100 (1970)

    The Supreme Court’s decision in Baldwin v. New York, mandating a jury trial in state courts for crimes punishable by more than six months of imprisonment, applies prospectively only to trials commencing on or after June 22, 1970, the date of that decision.

    Summary

    The defendant, Ferrara, was convicted of assault and petit larceny in a non-jury trial and sentenced to concurrent seven-month terms. Before trial, he requested a jury, which was denied. On appeal, Ferrara argued that Baldwin v. New York, decided after his trial but before his appeal, entitled him to a jury trial because the crimes were punishable by more than six months. The New York Court of Appeals held that Baldwin applied prospectively only, starting from the date of that decision. Therefore, Ferrara’s conviction was affirmed, but the court also directed the Appellate Divisions to authorize jury trials in the Criminal Court for applicable cases until the legislature could act.

    Facts

    On July 15, 1969, Ferrara was convicted in the Criminal Court of the City of New York for assault, third degree, and petit larceny. Both crimes are class A misdemeanors punishable by a maximum sentence of one year. The trial was conducted before a panel of three judges without a jury. Prior to the trial, Ferrara moved for a jury trial, but the motion was denied.

    Procedural History

    Ferrara was convicted at trial. He appealed, arguing that the denial of a jury trial was in error given the Supreme Court’s ruling in Baldwin v. New York, which was decided after his trial but before his appeal was heard. The New York Court of Appeals considered whether Baldwin applied retroactively to cases tried before the Baldwin decision.

    Issue(s)

    Whether the Supreme Court’s decision in Baldwin v. New York, which mandates a jury trial for any crime punishable by imprisonment for more than six months, applies retroactively to cases that were tried before the date of the Baldwin decision (June 22, 1970).

    Holding

    No, because the Supreme Court’s decision in Baldwin v. New York applies prospectively only, affecting trials commencing on or after June 22, 1970.

    Court’s Reasoning

    The Court of Appeals acknowledged the Supreme Court’s decisions in Baldwin v. New York and Williams v. Florida, which together established the right to a jury trial for offenses punishable by more than six months’ imprisonment. However, the court determined that the key question was whether the Baldwin decision should be applied retroactively. The court relied on precedent establishing that the date of a new decision, rather than prior cases on which it was based, is often the starting point for its applicability. Citing cases such as Griffin v. California, Tehan v. Shott, Miranda v. Arizona, and DeStefano v. Woods, the court emphasized that both federal and state courts have the authority to determine the prospective or retroactive application of new legal rules.

    The court explicitly stated, “Accordingly, the recent decision of the United States Supreme Court in Baldwin v. New York (supra) should be applied only to those trials commencing on or after the date of that decision, June 22, 1970.” This prospective application meant that Ferrara, whose trial occurred before June 22, 1970, was not entitled to the benefit of the Baldwin ruling.

    Recognizing the practical implications of its decision, the court addressed the administrative challenges created by the Baldwin and Williams rulings, particularly the lack of state authority to impanel juries in the New York City Criminal Court. The court directed the Appellate Divisions of the First and Second Departments to use their supervisory powers to authorize the Criminal Court to conduct jury trials using six-person juries selected from Supreme Court jury lists. This was intended as a temporary solution to ensure the Criminal Court could function in accordance with the Supreme Court’s mandates until the legislature could enact comprehensive measures to address the issue. The court noted that “Such a rule is necessary by reason of the determination of the Supreme Court of the United States in Baldwin and Williams (supra) despite the absence of State authority to impanel a jury in the New York City Criminal Court.”