By Jessica Dye
NEW YORK, Dec 19 (Reuters) - A judge overstepped his
authority when he sanctioned the Queens district attorney's
office in connection with a controversial pre-arraignment
interview program, a New York appeals court ruled Wednesday.
The ruling from the Appellate Division, Second Department,
blocks an April order from Acting Supreme Court Justice Joel
Blumenfeld in Queens.
Blumenfeld held that prosecutors had violated Rule 8.4(c) of
the American Bar Association's Rules of Professional Conduct
when they questioned robbery suspect Elisaul Perez in 2009 as
part of the pre-arraignment program, in which prosecutors meet
with suspects in central booking before they have been assigned
lawyers. Rule 8.4(c) prohibits attorneys from engaging in
"dishonesty, fraud, deceit or misrepresentation."
The judge sanctioned the Queens district attorney's office,
ruling that it could not use statements made by Perez during the
interview in its direct case at trial.
The Second Department held that Blumenfeld had no legal
basis to preclude Perez's statements.
"Justice Blumenfeld lacked the power to preclude Perez's
statement, since the sanction of preclusion was not imposed to
remedy any prejudice to Perez or any violation of Perez's
rights, but for the purpose of sanctioning perceived unethical
conduct in general," Justice Peter Skelos wrote for the
The Second Department did not weigh in on whether any
ethical violations had occurred.
Queens District Attorney Richard Brown praised the ruling.
"(T)he Second Department has now held, as we argued, that
(Blumenfeld) exceeded his authority and that he improperly used
the extreme remedy of suppression as a sanction meant to
'regulate the administration of a program' rather than focusing
on the facts of the case before him," Brown said.
An attorney for Blumenfeld declined to comment.
The Queens district attorney's office has conducted
pre-arraignment interviews since 2007. During the interviews,
prosecutors read from a script, which encourages the suspects to
tell their version of events.
"If there is something you would like us to investigate
concerning the incident, you must tell us now so that we can
look into it," the script says.
Since the inception of the pre-arraignment interview
program, 11,530 defendants have been through it, Brown said. Of
those defendants, 25 percent requested an attorney, 20 percent
confessed to the crime, 12 percent denied the crime and 41
percent made a video statement about the crime, he said.
Civil liberties groups have decried the pre-arraignment
program as an attempt to ensnare suspects before they have legal
Perez was arrested in 2009 and interviewed by Queens
prosecutors in connection with a suspected robbery. He was told
the pre-arraignment interview would be recorded on video, was
advised of his right to a speedy arraignment and read his
Miranda warnings, the ruling stated.
After giving his version of the events, Perez was charged
with robbery. He moved to suppress the video statements, saying
they were illegally obtained in violation of his Miranda rights.
Blumenfeld denied the motion, saying Perez had failed to
prove the statement was given involuntarily. However, the judge
precluded the statements after concluding that prosecutors had
violated Rule 8.4(c).
The Queens district attorney's office sought a writ of
prohibition blocking Blumenfeld's order, arguing the program was
ethical. Even if it was found to be unethical, the office said,
Blumenfeld exceeded his authority by blocking Perez's statement
on that basis, according to the decision.
The Second Department agreed.
"(T)he criminal proceeding, and more specifically, the
suppression hearing, were used to impose a generalized sanction
on the district attorney's office for its administration of a
program," Skelos wrote. "As such, Justice Blumenfeld's
preclusion order constituted a misuse of the entire proceeding."
Justices William Mastro, Anita Florio and L. Priscilla Hall
joined the opinion.
In March, a coalition of organizations -- including the New
York Civil Liberties Union, the Brennan Center for Justice, New
York State Defenders Association and the New York Association of
Criminal Defense Lawyers -- filed an amicus brief in the Second
Department on behalf of defendants seeking to suppress evidence
gleaned from pre-arraignment interviews. Those cases, which do
not involve Perez, are pending.
The case is Matter of Brown v. Blumenfeld, Supreme Court of
the State of New York, Appellate Division, Second Department,
For the district attorney's office: John Ryan, James Quinn,
Robert Masters and Donna Aldea of the Queens district attorney's
For Blumenfeld: Mark Pomerantz and Jane O'Brien of Paul
Weiss Rifkind Wharton & Garrison.
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