Anda di halaman 1dari 27

COUNTY COURT: STATE OF NEW YORK PUTNAM COUNTY

X

THE PEOPLE OF THE STATE OF NEW YORK,

NOTICE OF MOTION FOR AN INQUIRY PURSUANT TO PEOPLE v GOMBERG

-against-

Return Date:

November 18, 2013

ALEXANDRU HOSSU a/k/a ALEX HOSSU,

Defendant.

(Adler, J,)

Putnam County Indictment Number 32-20 13

X

PLEASE TAKE NOTICE, that upon the annexed Affirmation of William C.

Milaccio. Esq., duly sworn on the 28th day of October. 2013. and upon the pleadings and

proceedings heretofore had herein, the undersigned will move this Court before the

Honorable Lester B. Adler, at the Putnam County Courthouse located at 20 County

Center, Carmel, New York, 10512, on the

th 18 day of November, 2013 at 9:30 A.M. or as

soon thereafter as this matter may be heard, for an ORDER:

Directing an inquiry be conducted on the record pursuant to People v Gom berg,

38 NY2d 307 (1975), to, among other things: ascertain potential conflicts of interest

between defendant and his current attorney. Daniel Mentzer, Esq., that have become

apparent after recent public disclosures; advise defendant of the risks attendant to being

represented by an attorney with those potential conflicts of interest; obtain from

defendant his informed decision to either consent to being represented by current counsel,

or request to be represented by another retained or assigned attorney; and, any further

relief this Court deems just and proper.

Dated: White Plains, New York October 28, 2013

Yours, etc.,

JANET DIFIORE District Attorney of Westchester County

Special District Attorney in this Matter

111 Dr. Martin Luther King, Jr. Blvd. White Plains, New York 10601 (914) 995-3497

To:

Daniel Mentzer, Esq. Mentzer & Sheindlin, LLP 600 Mamaroneck Aye, Suite 400 Harrison, NY 10528

COUNTY COURT: STATE OF NEW YORK PUTNAM COUNTY

X

THE PEOPLE OF THE STATE OF NEW YORK,

-against-

AFFIRMATION IN SUPPORT OF MOTION FOR AN INQUIRY PURSUANT TO PEOPLE v GOMBERG

 

Return Date:

November 18, 2013

ALEXANDRU HOSSU a/k/a ALEX HOSSU,

 

(Adler, J.)

Defendant.

Putnam County Indictment Number 32-20 13

x

STATE OF NEW YORK )

ss.:

COUNTY OF WESTCHESTER )

WILLIAM C. MILACCIO, an attorney duly admitted to practice before the courts

of the State of New York, under penalty of perjury, hereby affirms and states: that he is

an Assistant District Attorney of Westchester County and, acting on behalf of Special

District Attorney Janet DiFiore in this case, submits this affirmation and accompanying

exhibits and memorandum of law in support of the People’s motion for a Gomberg

inquiry (People v Gomberg. 38 NY2d 307 [1975]). This affirmation is made upon

information and belief the sources of which are: the file of this matter maintained by the

Office of the Westchester County District Attorney; conversations with Westchester

County Assistant District Attorney Fredric I. Green and other members of District

Attorney DiFiores staff; the minutes of the proceedings in this case on October 15, 2013;

the record of the grand jury proceeding in this case; the records of the Supreme Court,

Putnam County; visitation records from the Putnam County Jail;

and, recent news reports

regarding this case.

By decision and order of the Honorable

Alan D.

Scheinkman. Administrative

Judge of the Ninth Judicial District,

dated March

14, 2013, the Office of the Westchester

County District Attorney Janet DiFiore

was

appointed as

Special District Attorney in the

investigation and prosecution of this matter upon the disqualification

of Putnam County

District Attorney Adam B.

Levy (hereinafter,

“DA Levy”) from acting in this particular

case.

Defendant is charged by Putnam County Indictment

Number 32-2013

with two

counts of rape in the first degree under Penal Law

§

130.35(1), two counts of rape in the

second degree under Penal Law

§

130.30(1),

and endangering the welfare of a child

under Penal Law

§

260.10(1).

The relevant facts for the determination of

the instant motion are as follows:

On March

13, 2013,

at the Putnam County Child Advocacy

Center (“CAC”),

a

Putnam County Sheriff’s Department Investigator

and a Child Protective Services worker

interviewed the child victim as to how defendant had raped her on or about October 24,

2010,

in her home.

The interview was recorded.

Outside the interview room,

a Putnam

County Assistant District Attorney watched and listened to the interview via closed

circuit television,

as well as the victim’s aunt, who

is the victim’s guardian.

During the

meeting of these parties at the CAC,

it was learned that defendant had a relationship

with

DA Levy.

Defendant

was

DA Levy’s personal trainer.

As

a result of this relationship, by letter dated March

14,

2013,

DA Levy sought

to disqualify himself from the investigation

and prosecution of this matter,

and for the

2

appointment of a

Special District Attorney.

In his application, DA Levy indicated that he

was “personally familiar with the target” of the rape investigation,

and that he was asking

to be disqualified

‘in order to avoid any questions about the ultimate

disposition of this

case”

and because

“it would be in the best interests of the criminal justice

system and the

[sici ethical considerations” (see Application For Special District

Attorney,

attached

hereto

as Peoples Exhibit

I).

DA Levy’s application was granted.

as noted above, by decision and order of the

Honorable Alan D.

Scheinkman, Administrative Judge of the Ninth Judicial District,

dated March

14,

2013,

after Westchester County District Attorney Janet DiFiore agreed

to accept the appointment as Special District Attorney

in this matter (see Special District

Attorney Order, attached hereto

as People’s Exhibit 2).

On March 20,

2013, the Putnam County Sheriff’s Department

filed two felony

complaints in Justice Court, Town of Southeast

which each charged defendant with

a

single count of rape in the first degree under Penal Law

§

130.35(1).

A warrant for

defendant’s

arrest was issued and, pursuant thereto, defendant

was arrested later that day

and brought before the Justice Court for arraignment.

At his arraignment, defendant

pleaded not guilty.

The day after defendant’s arrest, the Putnam County Sheriffs Department

issued

a press release reporting,

inter alia, that defendant lived at

70 Indian Wells Road in

Southeast.

This is the home address registered

by the defendant with the New York

Department of Motor Vehicles and

is

disqualified from participating

in this

also DA Levy’s home address.

Although

matter, DA Levy then telephoned

the Office of the

Westchester County District Attorney and requested that the Special District Attorney

3

issue a public statement in response to the aforementioned report that defendant’s home

address was DA Levy’s home. This request was denied. Further, the alleged home

address of the defendant at the time of his arrest in 2013, nearly three years after the 2010

rape which occurred in the victim’s home, was and remains irrelevant to the evidence

supporting this prosecution.

On March 26, 2013, defendant appeared with retained counsel, Jeffrey Chartier,

Esq. and Stacey Richman, Esq., in Justice Court, Town of Southeast, and the matter was

adjourned to May 7, 2013. Less than a week later, Robert Y. Altchiler, Esq. (hereinafter,

“Altchiler”) officially appeared in this matter on behalf of defendant. According to

Aitchiler, he had been retained by defendant on March 29, 2013 (see Aitchiler Letter to

the Court, dated October 15, 2013, infra).

On June 6, 2013, Altchiler facsimiled a letter by the same date to Assistant

District Attorney Fredric I. Green requesting that 13 individuals, including DA Levy, be

called to testify during an upcoming grand jury proceeding. According to Altchiler, DA

Levy could testify about his “observations” of defendant during their “frequent”

interaction while defendant acted as his personal trainer and lived with DA Levy “for a

short time and in light of DA Levys purported training in “recogniz[ing] sex offenders

and the behavior sex offenders tend to display.” In short, DA Levy was proffered as a

character witness for defendant.

Starting on June 7, 2013, and continuing on June 12, 2013, and June 14, 2013,

relevant evidence of defendant’s crimes was presented to a Putnam County grand jury.

The grand jury voted to not hear testimony from DA Levy.

4

On June

14,

2013,

defendant also appeared before the grand

jury

with Altchiler,

and after waiving his right to immunity,

testified on his own behalf

After the completion

of defendant’s

grand jury testimony,

ADA Green delivered applicable

legal instructions

to the grand jury, which returned

a true bill.

Three days later,

on June

17,

2013, Altchiler facsimiled

a letter to ADA Green

indicating that,

“if the case has not been voted,”

he requested,

inter

a/ia, that the grand

jury hear testimony from DA Levy regarding

the appointment of the Westchester County

District Attorney

as Special District Attorney because such testimony

would allegedly

“assist the grand jury in determining

credibility issues connected to law enforcement.”

The request which was moot was essentially a

proffer of DA Levy

as an adverse witness

to the Putnam County Sheriffs

actions

in

a

case where the testimony of

a

child victim

was the core of the case and not the police testimony.

To the point, the proffered

evidence was irrelevant to the purpose of

the grand jury proceedings in this case.

On June

18,

2013, the People filed a Certificate of Indictment

in

Justice Court,

Town of Southeast.

On June 26, 2103, the People filed Putnam County Indictment

Number 32-2013.

On July

2,

2013,

defendant, represented by Aitchiler,

appeared in County Court,

Putnam County (Adler. J.).

Defendant pleaded not guilty,

and a consent discovery order

and accompanying bill of particulars were filed with the Court and served on Aitchiler.

Shortly thereafter, Christopher York, the Chief Assistant District Attorney

to DA

Levy, telephoned ADA Green and criticized the handling of this case by the Westchester

County District Attorney’s Office.

York attributed DA Levy

as a

source of his criticism.

Aside from the meritless nature of the complaints,

ADA’s York’s telephone call was

5

entirely inappropriate given the disqualification of DA Levy and his Office. In hindsight,

the call appears to have been an attempt to influence the prosecution.

On July 8, 2013, the People received a motion by Aitchiler on behalf of defendant

to dismiss the indictment pursuant to CPL 190.50 and a Demand to Produce.

By an affirmation and memorandum of law, dated July 17, 2013, the People

opposed defendant’s CPL 190.50 motion, and the next day, July 18, 2013, the People also

filed and served a Demand Refusal in accordance with CPL 240.35.

Together with a letter, dated July 18, 2013, the People also provided Altchiler

items pursuant to the consent discovery, including a copy of an email, dated March 28,

2013, between prosecutors in the Westchester County District Attorney’s Office and

Putnam County District Attorney’s Office. During a subsequent conference before the

Court, ADA Green stated that he had provided Altchiler with certain discovery, such as

the aforementioned email, and Aitchiler responded that he already had a copy of the

email.

By decision and order, dated July 23, 2013, the Court denied defendant’s CPL

190.50 motion.

On or about August 14, 2013, in Supreme Court, Putnam County, a civil

complaint was filed on behalf of DA Levy against the Putnam County Sheriff

(hereinafter, “the Sheriff’) for defamation seeking, inter alia, $3,000,000 in

compensatory and $2,000,000 in punitive damages. In the complaint, DA Levy asserts

that defendant was a family friend (4), “close personal friend” (J27), and “frequent

guest in [his] home from March 2011 through June 2012” (44). DA Levy claims, inter

alia, that the Sheriff had arrested defendant without first allegedly conducting “any type

6

of case enhancement to

support the

[rapel

charge” (j66

[emphasis

in original]).

DA

Levy further claims that the Sheriff falsely and maliciously

made public

statements

about

him, including that:

defendant had lived with DA Levy

(W3-7);

and,

DA Levy had

attempted to “undermine

and influence the investigation” of defendant, notwithstanding

DA Levy’s disqualification and public pronouncement that he “offered his complete

cooperation”

to the Office of the Westchester County District Attorney

(iJ

84,

87))

Shortly after the filing of this civil

suit,

and in furtherance of his own personal interests,

DA Levy held

a press conference which was aired on local and national

news

outlets,

and

appeared on CNN to discuss his civil suit,

2

and by extension, this criminal case.

On the heels of DA Levy’s civil suit and publicity

campaign,

on August

19, 2013,

the People received a motion by Altchiler on behalf of defendant seeking certain omnibus

relief,

including dismissal of the indictment

on several grounds.

Foremost among those

grounds

was

the argument that the grand jury proceeding

was rendered defective by an

alleged “conflict of interest” between the Sheriff and DA Levy (Altchiler Affirmation

at

¶J5-l3;

Defendant’s Memorandum of Law at 5-7).

According to the defense theory, the

Sheriff allegedly conducted the investigation

in a biased manner to harm DA Levy and

benefit himself politically, but “in the process prejudicing

[defendant]

and undermining

the integrity of the prosecution”

(Altchiler Affirmation at 3).

Altchiler claimed that the

Sheriff “precipitously” obtained a warrant for defendant’s arrest without first

‘enhanc[ing]” the case against him,

and also falsely claimed to the media that,

inter a/ia,

1The complaint was accompanied

by a verification from DA Levy averring,

under penalty of perjury, that

he had reviewed the complaint and verified the

facts

set forth therein as true to his knowledge,

any

set forth upon

information and belief and as to those,

it is

[his]

belief that each

is

true.”

“except as to

See

e.g.

http:’!edition.cnn.com’TRAI\ISCRIPTS’l308/16’nday.04.html

and

(last visited on October 28,

2013).

7

he had been living at DA Levy’s residence at the time of his arrest and that DA Levy had

attempted to improperly influence the investigation (id. at ¶J6-7). These claims mirrored

the claims in DA Levy’s civil action against the Sheriff, which, as noted above, DA Levy

affirmatively publicized in the press and on national and local television. Aitchiler

opined that those media reports “undoubtedly had the potential of poisoning the jury

pool against him and “may well have intimidated and deterred potential defense

witnesses from coming forward” (Ed. at ¶11). Blithely ignored was the more likely

prejudicial effect the publicity had on the prosecution in this criminal case and on the

child victim’s willingness to proceed with the prosecution.

On or about September 10, 2013, the People served and filed an affirmation and

memorandum of law in opposition to defendant’s omnibus motion.

On September 19, 2013, the People received a Reply Memorandum from

Altchiler.

Before the omnibus was decided, on September 20, 2013, defendant was visited at

the Putnam County Jail by Daniel Mentzer, Esq., an attorney in the firm of Mentzer &

Sheindlin, LLP. Mentzer’s law partner, Nicole Sheindlin, Esq., is his wife and step-sister

of DA Levy. Thus, Mentzer is DA Levy’s brother-in-law.

Four days after Mentzer’s visit with defendant, on September 24, 2013, during a

conference in the Court’s chambers with ADA Green and Aitchiler, Altchiler stated that

he wanted to withdraw from representing defendant due to the lack of funds to pay for his

services. The Court did not grant Aitchiler’s application, but rather directed Aitchiler to

submit his reason for seeking withdrawal in writing. Moreover, the Court suggested,

inter alia, that Aitchiler consider being paid pursuant to County Law § 18-b to avoid any

8

delay in the disposition of this matter. Accordingly, the matter was adjourned to October

16, 2013.

The case was subsequently advanced one day to October 15, 2013, and on that

date, before calling the case on the record, the Court conducted another conference in its

chambers with ADA Green and Aitchiler. During this conference, Aitchiler submitted a

two-page letter, dated October 15, 2013, requesting permission to withdraw from

representing defendant. Aitchiler stated that his relationship with defendant was

“irretrievably broken” and “conflicts” had had arisen. According to the letter, the

previous day, Aitchiler had presented defendant with a “seven-page letter, detailing the

number of conflicts and an affidavit regarding those conflicts. Alticher stated that

defendant had refused to sign either the letter or affidavit to acknowledge his awareness

of those conflicts. Altchiler, as a matter of constitutional privilege, did not specify

defendants reasons for refusing to sign those documents. By his letter, Altchiler did,

however, offer to present this Court with an affidavit, albeit exparte, detailing the good

cause for him to withdraw as defendant’s attorney (Attached hereto as People’s Exhibit 3

is a Copy of Altchiler’s October 15, 2013, Letter).

Upon the completion of the aforementioned conference, the case was called in

County Court, Putnam County, with defendant also present. In light of Altchiler’s

previous statements that he would ask to be relieved because he had allegedly not been

paid, at the request of the Court, an attorney from the Legal Aid Society of Putnam

County had also appeared. The Legal Aid attorney had also interviewed defendant

regarding his finances and ability to pay for his representation. Altchiler reiterated on the

record that he was seeking to withdraw from representing defendant, stating that he and

9

defendant were in ‘actual conflict.” In response to an inquiry from the Court, defendant

confinried that he had heard Aitchiler’s application, and stated that he wanted Altchiler to

be relieved, but that he did not have funds to retain a new lawyer. With that, the Court

stated that it had asked the Legal Aid Attorney to appear and possibly represent

defendant.

The Legal Aid Attorney stated his name on the record; however before he could

continue, a person from the gallery, Lynn Bartlett, raised her hand to address the Court.

Bartlett’s daughter is the girlfriend of defendant, who has been reported to be the nanny

to DA Levy’s children.

3

A brief recess was then taken, during which Bartlett made a

statement to Altchiler regarding funds allegedly paid to him by her.

When the case was recalled, Altchiler informed the Court that Bartlett wanted to

tell the Court that Daniel Mentzer, Esq., had “expressed interest” in representing

defendant and that she had spoken to Mentzer. Altchiler stated that he had met with

Mentzer, and he had also “expressed

interest. . .

and enthusiasm about coming into the

case, but that he could only appear in this case in two months due to an engagement in

another criminal matter. Concerned about delaying the proceedings, the Court asked the

Legal Aid attorney present whether he could represent defendant. The Legal Aid

attorney reported that, based upon his interview of defendant, defendant would meet the

indigence requirement to be eligible for assigned counsel.

When the Court then began to explain to defendant that counsel would be

assigned to him to avoid any further delay of a trial, defendant requested permission to

address the Court. After being advised by the Court that anything he said was on the

See http://hudsonva1levreporter.com/putnam/201 3/1 0/smiths-defamation-defense-paid-for-by-putnam-

c4nt’i-i3jsttraIci (last visited on October 28, 201 3).

10

record, defendant stated that he had previously

spoken to Mentzer, but not “in depth.”

And,

seemingly referring to the Legal

Aid attorney, defendant stated that

he did not have

a lot of information about his finances, and that

he had asked that any interview of him

regarding that subject be delayed for

a

few days

so

he “can have time to talk to

somebody.”

The Court advised defendant that the

case would be adjourned to October

21, 2013,

and on that date,

Mentzer would either appear as defendant’s

new attorney or

another attorney would be assigned to represent

defendant to avoid any further delays.

The case was then adjourned.

Before the next court date,

on October

18,

2013, the Journal News reported that

DA Levy had acknowledged

to

a

reporter, that he helped pay Aitchiler to represent

defendant.

According to the Journal News,

DA Levy had claimed that he did not hire

Altchiler and that his retainer had been paid for

by “friends from the community,”

but

that when more money was needed

to pay for his defense,

DA Levy contributed

(see

Copy of October 18, 2013,

Journal News article attached hereto

as People’s Exhibit 4A).

The amount of money paid by DA Levy

was not reported.

On October

21,

2013,

defendant was produced in County Court, Putnam County.

Altchiler, Mentzer and ADA Green also appeared in Court.

The Court granted

Altchiler’s request to withdraw from representing

defendant.

Mentzer in turn confirmed

that he was now representing defendant.

Due to Mentzer’s relationship

to DA Levy,

ADA Green requested permission

to file

a

motion for the Court to conduct an inquiry of

defendant pursuant to People v Gomberg. szipra,

due to the potential conflicts of interest

4By decision and order, dated October 15, 2013, the Court also denied defendant’s omnibus motion in part

and granted it in part.

11

between defendant and Mentzer. The Court granted the People’s request and the matter

was then adjourned for the People to file a motion.

After this proceeding, the Journal News reported on October 21, 2013, that

according to Aitchiler, and in seeming contravention of Judge Scheinkman’s appointment

of a Special District Attorney upon DA Levy’s disqualification from acting in this

particular case. DA Levy had not only paid (at least in part) for the defense, but he also

had attempted to be actively involved in the defense of defendant by, inter a/ia, providing

information from law enforcement (unspecified in the article), offering “tactical and

strategic” suggestions for the defense, and asking for an advance opportunity to review

any papers to be filed on behalf of defendant. Altchiler described DA Levy’s efforts to

insert himself into the defense as brazen and overt manipulations.” According to

Altchiler. DA Levy was intent on imposing his will on the case and that in his opinion,

[W]hat was good for Adam Levy was not necessarily good for [defendant]” (see Copy

of October 21, 2013, Journal News article attached hereto as People’s Exhibit 4B).

The next day, October 22, 2013, the Journal News reported that Mentzer stated

that he had met defendant through DA Levy. According to Mentzer, DA Levy was not

paying him to represent defendant, but then refused to reveal who had paid him. The

article also quoted Aitchiler: “If Adam Levy is smart, he’ll shut up about the Hossu case

and let his brother-in-law represent the client without him interfering. Alex Hossu

deserves a defense undiluted by outside influences” (see Copy of October 22, 2013,

Journal News article attached hereto as People’s Exhibit 4C).

Thus, for the second time,

Altchiler expressed concerns about defendant possibly being subjected to a conflicted

representation.

12

On October

23,

2013, the Journal News reported that, according

to Mentzer,

Altchiler had sought to be relieved because he had demanded more money.

The Journal

News

also reported that, contrary to

a previously reported statement from Mentzer,

Mentzer claimed that he had met with defendant

at the request of defendant’s girlfriend

and her mother,

Lynn Bartlett.

and that defendant’s girlfriend and her mother had paid

Altchiler.

In response to Mentzer’s public statements

as to why Aitchiler sought to be

relieved, Aitchiler suggested that Mentzer publicly release his

seven-page letter to

defendant

(see

Copy of October

23,

2013, Journal News article attached hereto

as

People’s Exhibit 4D).

In a later report from the Journal News,

also dated October

23,

2013. Altchiler

was quoted denying receiving any payment from Lynn Bartlett,

and further quoted as

saying:

 

‘1

think

Levy acted as

a good, loyal friend to Alex Hossu.

I don’t

think

there’s any ethical prohibition on Levy helping

the defense.

But when he

started to give legal advice,

and

when he went around me to the client,

he crossed the line.

Mr.

Levy is an elected official,

is

a government and state

 

actor and

I viewed certain actions by him as a violation of

my

client’s right to counsel and a breach of other ethical rules”

(see

Copy of October 23,

2013,

Journal

News

article attached

hereto

as People’s Exhibit 4E).

 

It was

not

reported in the article which “actions” of

DA Levy Aitchiler believed had

violated defendant’s constitutional right to counsel.

On October

24,

2013,

the Journal News further reported on the claim of

defendant’s original attorney that DA Levy had attempted to influence this case.

According to Altchiler, he had been repeatedly contacted by a public relations firm hired

by DA Levy to help DA Levy with publicity concerning

his case against Sheriff Smith

1.)

and,

at DA Levy’s request, offering to assist Hossu’s defense with “media outreach.”

The Journal News cited emails provided

by

Aitchiler from a representative of that public

relations firm to Altchiler.

The Journal News also quoted an email from Aitchiler

to

Lynn Bartlett in which Altchiler

stated that he had been “manipulated for months”

(see

Copy of October 24.

2013, Journal News article attached

hereto

as People’s Exhibit 4F).

And the public comments denigrating

the prosecution of this child rape case by

sources connected to

DA Levy continue.

These comments continue in disregard

to his

official status

as the disqualified prosecutor in this case and the negative impact such

publicity may have on the case as

a whole and the child victim

in particular.

On October

25,

2013,

the

New

York Times reported in an article entitled “Rape

Case of Prosecutor’s

Friend Spins Into County Feud” quoted a

political

strategist, Hank Sheinkopf hired by

DA Levy to

speak on his behalf:

“Mr.

Levy could have abandoned his friend of over

10 years

and allowed political forces to rip him apart like wild dogs

fighting over a steak.

Instead,

Mr.

Levy stood by his friend

and helped contribute to his legal expenses to ensure he had

an adequate defense” (see Copy of October

25,

2013, New York

Times article attached hereto as People’s Exhibit

5).

14

WHEREFORE, for the reasons more fully

set forth in the annexed Memorandum

of Law,

the People respectfully request that the Court conduct an on-the-record

inquiry of

defendant pursuant to People

  • v Gomberg,

szipra.

Affirmed to be True.

Dated:

White Plains. New York

October 28,

2013

WILLIAM

  • C. MILACCIO

Assistant District Attorney

15

MEMORANDUM OF LAW

TO PROTECT DEFENDANT’S

SIXTH AMENDMENT RIGHT

TO THE EFFECTIVE ASSISTANCE OF COUNSEL

AND ENSURE

THAT ANY CONVICTION, IF OBTAINED, IS NOT SUBJECT TO

LATER ATTACK DUE TO COUNSEL’S

ALLEGED CONFLICT

OF INTEREST, THE COURT SHOULD CONDUCT THE

NECESSARY INQUIRY OF DEFENDANT UNDER PEOPLE

v

GOMBERG.

A

prosecutor is “obliged to alert the court when he or she possesses knowledge of

facts from which an apparent conflict

can be inferred” (People

v McDonald,

68 NY2d

1,

8

[19861).

A trial court likewise has the duty “to protect the right of an accused

to

effective assistance of counsel.

.

.“

(People

v Gomberg,

38 NY2d 307,

313

[1975]) when

the court is informed of a potential conflict of interest by defense counsel or

is

‘aware of

facts from which it appears that conflicting

interests arguably exist

.

.

.“

(People

v

McDonald,

68 NY2d at

8).

This protective judicial inquiry,

otherwise known as

a

Goinberg inquiry, thus resolves two competing

policy considerations,

as explained by the

Court of Appeals:

“Since the right to effective assistance of

counsel and the

right to retain counsel of one’s choice may clash when a

retained attorney is involved in an apparent conflict of interest,

a Trial Judge has

a duty to protect the right of an accused

to effective assistance of counsel.

At the same time,

a court

should not arbitrarily interfere with the attorney-client

relationship” (People

v Gombeig,

38 NY2d at 313).

Thus, under Gomberg,

the court must inquire on the record of the defendant “to ascertain

whether he or she has an awareness

of the potential risks involved in that course and has

knowingly chosen it”

(People

v McDonald,

68 NY2d at

8, quoting People

v

Gomberg,

38

NY2d at 313-314 and citing People vMacerola,

47NY2d

257,

263

[1979]

[internal

quotations marks omitted]).

Critically,

“[a]

defendant may not always perceive the

16

existence of a conflict of interest” and, therefore,

‘the court should be

satisfied

.

.

.

that

the defendant’s decision to proceed with his attorney is

an informed decision” (People

v

Gomberg,

38 NY2d at 313

[citations omitted]).

Some actual conflicts

are

so severe that

they can never be effectively waived (United States

v Schwarz, 283 F3d 76

[2d Cir.

2002]).

The issue raised by an attorney’s potential conflict of interest implicates

not

only the Sixth Amendment right of the accused, but also the interests of the

courts

in

preserving the integrity of the process and the government’s

interests in ensuring

a jury

verdict and a fair trial” (United States

v Locasio,

6 F3d 924,

931

[2d Cir.

l993]).

In this case there has been public disclosure of potential

conflicts of interest

between defendant and his new attorney,

Daniel Mentzer, Esq.

stemming from the fact

that Mentzer is the brother-in-law to Putnam County District Attorney Adam

  • B. Levy,

who

is disqualified by court order from acting in this case,

and who has contributed to the

defense of the case,

and both sued and publicly attacked the Putnam County Sheriff and

other officers from the Sheriff’s Department

in reference to this case.

Therefore, this

Court should ascertain the nature of any conflict and advise defendant of that conflict and

the risks attendant to

it, thereby allowing defendant to make an informed decision

to

either allow Mentzer to continue

to represent him or find substitute counsel.

There is

a

substantial possibility that those potential conflicts of interest are the same conflicts

which led defendant’s original attorney, Robert Aitchiler, Esq., to withdraw from

representing defendant, and indeed those conflicts present a greater risk to defendant of

receiving effective and conflict-free representation

due to the familial relationship

The failure of

a

cowl to make the inqui,

when appropriate, requires

a reversal of a conviction when

a

defendant can “demonstrate[e]

that a conflict of interest,

or at least the

significant possibility thereof did

exist

(People v Lombardo.

McDonald,

61

NY2d 97.

103

[19841,

quoting

People v Macerola,

47 NY2d

at 264

[internal quotation marks

defense”

(People

v

omitted]);

68

and the conflict “bears

NY2d at 9

a

substantial relation to the conduct of the

and citations omitted]).

[internal quotation marks

17

his will on the

was “intent on imposing

If DA Levy

between Mentzer and DA Levy.

only exacerbated

at the helm (People’s Exhibit 4B-C), the problem

case” with Aitchiler

As demonstrated below, although defendant and DA

by his brother-in-law’s substitution.

an “identity of

they do not necessarily have

Levy are reportedly close personal friends,

due to DA

[2010]),

319, 329

NY3d

in this case (People v Carncross, 14

interest[s]”

as the elected Putnam County District

and ethical responsibilities

Levy’s professional

as defendant’s prior

political and economic interests;

and DA Levys personal.

Attorney,

good for

good for DA Levy may not be

attorney has already publicly stated, what

defendant (People’s Exhibit 4B).

the Office of the Putnam

Notwithstanding the order disqualifying DA Levy and

DA Levy

and prosecution of this matter,

County District Attorney from the investigation

subject to the

officer in Putnam County,

remains the highest ranking law enforcement

DA

which flow from that position.

professional and ethical duties and responsibilities

the Office of the Westchester

pledged his cooperation with

Levy has also publicly

and that public

Given his elected position

County District Attorney in this matter.

in potential conflict with those of defendant,

DA Levy’s interests are plainly

statement,

a serious and violent felony offense in Putnam County

who is charged with committing

to further the

despite DA Levy’s disqualification

Pivotally,

office.

while DA Levy was

“ethical considerations”

“best interests of the criminal justice system” and unspecified

(People’s Exhibit 2),

(People’s Exhibit 1), the decision and order granting that application

to the prosecution,

offering his complete cooperation

and DA Levy’s public statements

sought to influence

public claims that DA Levy has

there is also mounting and substantial

be advised

defendant’s prior attorney and the defense, and, therefore, defendant must

is

is

in

18

regarding the potential risks resulting from any similar interference

with his current

attorney,

DA Levy’s brotherin-law.

DA

Levy’s influence of the defense has apparently

included his payment of

defendant’s

legal fees (People’s Exhibit 4A).

DA Levy has now publicly acknowledged

that he paid.

at least in part,

for Altchiler’s representation of defendant,

a fact creating the

possibility of a conflict of interest (see

United States

v Locasio,

6 F3d

at 932

[“[T]he

acceptance of ‘benefactor payments’

may subject an attorney to undesirable outside

influence and raises

an ethical question

as to whether the attorney’s loyalties

are with the

client or the payor”],

quoting In re Grand Jury Subpoena Served Upon John Doe

v

United States,

781

F2d 238,

248 n6

[2d Cir.

1986];

see also

Woody Georgia, 450 US

261,

269

[1981]

[noting the “inherent dangers that arise when

a criminal defendant is

represented by a lawyer hired and paid by a third party”); Matter

of Priest

v Hennessy,

51

NY2d 62,

70

[1980]

[‘[T]he payment of legal fees may.

in a proper case,

create a conflict

of interest even though it does not form the basis

for a claim of privilege.”); NY Rules of

Professional Conduct, Rule

1.7,

Comment

[13]

[allowing for payment from third party

provided client is

‘inforrned of that fact and consents and the arrangement

does not

compromise the lawyer’s duty of loyalty or independent

judgment to the client”];

see e.g.,

People

v McCutheon,

109 AD3d

1086

[4th

Dept.

2013]

[finding the court erred by not

conducting inquiry after learning that the defendant’s

legal fees had been paid for by

persons with interests potentially in conflict with the defendant]).

Neither DA Levy nor Altchiler has confirmed the amount of money paid by Levy

for Altchiler’s

service.

Although Lynn Bartlett has made public statements

that she paid

Altchiler, Altchiler has publicly denied receiving any payment from her.

Menzter has

19

denied that he has been paid by DA Levy, but given past representations

to this Court that

there was no longer any funds to pay for defendant’s

legal representation, the question of

who is now paying Mentzer or whether Mentzer is representing

defendant for some other

consideration from DA Levy remains open.

Regardless, the potential conflicts of interest

persist because, according to defendant’s original attorney, DA Levy’s involvement with

the defense exceeded any passive “outside influence”

from his benefactor payments.

Aitchiler has stated that DA Levy has not only been actively determined

to

influence the course of the defense, he has sought to “impose his will on the case” and

that his attempts amounted to “brazen and overt manipulations”

(People’s Exhibit 4B).

Of equal significance, Altchiler has stated that there was a conflict of interest between

DA Levy and defendant

As Altchiler stated to the Journal News, “In my view, what was

good for Adam Levy was not necessarily

good for Alexandru Hossu” (People’s Exhibit

4C).

Lastly, Altchiler’s request

to

be relieved due

to

conflicts (People’s Exhibit

3),

undisclosed

at

the time but now apparently based, at least

in

part, upon DA Levy’s

reported interference, is further evidence of the potential conflict between defendant and

Mentzer,

DA

Levy’s brother-in-law.

In addition to

the

conflict between defendant and

DA

Levy arising from

DA

Levy’s professional and ethical obligations, as noted above,

DA Levy also has political

and economic interests that potentially conflict with defendant’s

interests.

Any

conviction of defendant, even one pursuant to a plea bargain which may be highly

beneficial to defendant, would be potentially

politically detrimental to DA Levy as a

result of his publicly stated close association

with defendant

Indeed, DA Levy evidently

believesthisisso,asitisapredicateforhiscivilsuit

Thus,anattorneyadvancingDA

20

in any plea negotiations

Levy’s interests over those of defendant might either

not engage

a plea and towards trial.

or steer defendant away from

DA Levy and the

Moreover, because of the apparent political acrimony between

DA Levy also has

suit against him,

and DA Levy’s defamation

Putnam County Sheriff,

in pursuing any defense

political and economic interest

an additional and independent

that conduct

of the Sheriffs conduct, however tangential

which focuses on the propriety

Thus,

the rape allegations by the child victim against defendant.

may be to the defense of

a strategy which emphasizes the

by DA Levy might favor

an attorney unduly influenced

in hindsight and with the benefit of

Judged

suit.

claims raised by DA Levy in his civil

by this

Altehiler’s dismissal motion which was denied

Aitchiler’s recent revelations,

of the

as meritless, primarily focused on the propriety of the Sheriffs investigation

Court

and tracked the claims raised

with her rape complaint

case after the child came forward

by DA Levy in his defamation 6

be considered by the Court in conjunction

These potential conflicts must of course

and his subsequent public

with Altchiler’s letter to the Court seeking withdrawal

requested to be relieved due to conflicts of

In his letter to the Court, Aitchiler

statements.

due to attorney-client privilege (People’s

interest which he did not divulge presumably

so, that the interests

And, thereafter, he has apparently stated, unequivocally

Exhibit 3).

to interfere with

and DA Levy attempted

from those of defendant,

of DA Levy diverged

Any representation from Altchiler

4B-E).

as noted above (People’s Exhibits

the defense,

suit.

noting

6

It is

also worth

that,

long before the public

disclosures regarding

DA Levy’s alleged attempts to

opposition

influence the defense, the People wrote

in

to

Aitchiler’s

motion to dismiss

that “defendant’s

jury’s

Memorandum of

claim that the grand

curious

and illogical.

County,

who might

Law

decision

somehow prompted

reports

to indict was

by media

cited by him is both

In theory,

it is DA Levy,

an elected and

enforcement

ranking

law

official

Putnam

in

prejudicial

consider

it

to him to be linked to defendant,

an accused

rapist” (People’s

 

Opposition

in

to

Defendant’s Omnibus

Motion

at 25

[emphasis

in original]).

Thus,

before

even

the recent

Aitchiler’s

disclosures,

choice

of

appeared

arguments

some

to have been

raised

with

DA Levy,

not defendant,

in mind.

 

21

that there is

a potential conflict of interest between Levy and defendant should be given

great weight by this Court because Altchiler

is privy to information provided to him by

defendant,

and to the available evidence and defenses (compare People

v

Hai’kins,

11

NY3d 484,

492

[2008]

[“[lIt is defense counsel who

is charged with the single-minded,

zealous representation of

the

client and thus, of all the trial participants,

it is defense

counsel who best

knows the

argument to be advanced on the client’s behalf.”]).

Aitchiler

is also privy to the direct communications between himself and DA Levy, which, notably,

are not protected by attorney-client privilege.

Those communications need to be

explored.

So too must the Court explore Lynn Bartlett’s

alleged payment of legal

fees on

behalf of defendant,

particularly in light of both Aitchiler’s public

denial that she had

paid him and her daughtef

s relationship to DA Levy.

Against this backdrop,

it is manifest that there remains potential conflicts of

interest between defendant and his current attorney, Daniel Mentzer,

Esq.

because the

specter of DA Levy’s undue influence on the defense

is now more acute due to Mentzer’s

familial relationship to Levy.

Because of its significance,

it bears repeating that Mentzer

is Levy’s brother-in-law.

And DA Levy’s

step-sister practices law as her husband’s

business partner.

In that respect,

it is also noteworthy that, under the New York Rules of

Professional Conduct regarding a conflict of interest between an attorney and his

or her

client,

a firm of lawyers is considered,

in effect, to be one lawyer (id.

at Rule

1.10

[“Imputation of Conflicts of Interest”]), thus, further cementing the connection

between

Menzter and DA Levy.

While Altchiler could have arguably been influenced

by DA

Levy’s payment of defendant’s legal fees, he ultimately showed some independence

from

Levy by seeking to withdraw from the case (and his

subsequent public

statements).

22

Given Mentzer’s familial relationship

to Levy, there exists

a greater potential conflict of

interest between him and defendant

because, unlike Aitchiler, Mentzer arguably faces

greater pressure to take

a course of action consistent with Levy’s interests.

In light of his arguable conflict of interest,

all being played out in the public, this

Court must conduct an inquiry on the record pursuant

to People

v Gornberg, supra, to

ascertain the true nature of the potential

conflicts

and determine whether defendant is

aware of the risks

attendant to

such conflicts.

At this juncture, the People are not seeking

to disqualify Nentzer.

To reiterate, the conflicts of interest discussed are simply

“potential” ones,

and the People by this application are merely seeking a judicial inquiry

under Gomberg to ensure that the defendant is fully aware of those potential conflicts and

with that knowledge wants counsel’s continued representation.

Of course,

if an actual

conflict exists,

it may be

so

severe

as to be unwaivable as

a matter of law.

The inquiry is limited,

avoiding any intrusion on the attorney-client privilege

or

possible defenses

(People

v Gornberg,

38 NY2d at 313

[noting the limited nature of the

inquiry]).

As noted above,

any inquiry regarding the source of funds is not privileged

(Matter of Priest v Hennessy,

  • 51 NY2d at 70).

The Court should conduct an inquiry of

Aitchiler regarding both his public allegations

of a conflict and DA Levy’s reported

attempts to interfere with the defense.

Altchiler should be made to produce for this

Court’s review the affidavit and letter he presented to defendant detailing the conflicts

which apparently led him to withdraw from representing

defendant.

Altchiler has not

only given defendant’s current attorney a copy of the seven-page letter, he has invited

him to make it public.

This inquiry, further,

should also take place before trial (People

v

Gomberg,

38 NY2d at 314).

Furthermore, the Court should appoint independent counsel

to assist defendant in

making an informed decision on the question of the continuing representation

by his

current defense counsel,

Daniel Mentzer (see People

v Tancredi,

19 Misc 3d

1109(A),

2008

WL

795771,

*2

..

3

[Sup Ct West Co 2008]

[court appointed independent counsel

to

advise prosecution witness when defense counsel represented

witness

as

victim

in

civil

rights

suit and defendant in related criminal case]; see also

United States

v Curelo, 680

F2d

881,

888-891

[2d Cir.

1982]

[advising trial

courts

on available options

in inquiring

about potential conflict, including the defendant obtaining advice from independent

counsel]).

After the appointment and advice of counsel,

and with appropriate time to

consider his options,

the Court should inquire of defendant regarding

his understanding

of any potential conflict of interest and the risks created by that conflict.

Thereafter, the

Court should inquire of defendant whether he chooses

to be represented by Mentzer, or

seek other retained or assigned counsel.

Given the extent and content of the varying public disclosures

by both DA Levy

and defendant’s former attorney, this Court should take pains to clarify the situation not

only to protect defendant, but the integrity of the process itself

An on-the-record

Gornberg record inquiry is necessary

to ensure that defendant understands the risk created

by

any

conflict,

that he makes an informed decision whether to proceed with his current

counsel,

and ultimately receives effective assistance.

The Court should further determine

if the conflict of interest is waivable

as

a matter of law.

Absent such an inquiry,

a

conviction in this matter would be susceptible

to attack from defendant and present him

with a built-in claim on appeal based upon facts, which although apparent from recent

public disclosures,

are largely unknown to the People.

24

CONCLUSION

For the reasons discussed, therefore, the People respectfully

request that the Court

conduct an on-the-record inquiry of defendant

pursuant to People

  • v Gomberg.

Respectfully Submitted,

JANET DiFIORE

District Attorney of

Westchester County

Special District Attorney

in

this Matter

Westchester County Courthouse

Ill

Dr.

Martin Luther King, Jr., Blvd.

White Plains, New York

10601

(914) 995-3497

WILLIAM

C.

MILACCIO

RICHARD

LONG WORTH HECHT

Assistant District Attorneys

Of Counsel

25