DECISION Prior to trial, the People moved in limine to introduce on their direct case portions of the minutes of the defendant’s arraignment. At the arraignment, the defendant was represented by a retained counsel who has since retired. The People maintained that statements by the former attorney are properly attributable to the defendant and, as redacted, may be introduced on their direct case without undue prejudice to the defendant. The defendant opposed the motion as a violation of the defendant’s confrontation rights, as overly prejudicial and on other grounds.After considering the People’s request, the court reserved decision pending the defendant’s opening and testimony of the People’s witnesses, for several reasons. Most of the relevant authority permits entry of arraignment minutes to impeach the defendant’s trial testimony, but this application seeks to allow vicarious admissions as part of the People’s prima facie case. A more prudent course is to defer a ruling on the application at least until after the openings and introduction of evidence by the People. A defendant’s opening statement, while not an unbreakable promise to the jury, may lay out a defense with factual details that support the prosecution’s proposed use of the arraignment minutes. Similarly, defense cross examination of prosecution witnesses may highlight a particular challenged fact or facts which were specifically contradicted at the arraignment and thus serve to justify the prosecution’s request. Cf. People v. Rivera, 58 AD2d 147 ( 1st Dept 1977), affd. on op below, 45 NY2d 989 (1978).Following the parties’ openings and the prosecution case in chief, the People renewed their motion. They cited People v. Castillo, 94 AD3d 678 (1st Dept 2012), a First Department case which upheld a trial court’s admission of a statement made by the defendant’s prior counsel at arraignment. In Castillo, the trial court in its discretion permitted the attorney’s record comments to be introduced on the prosecution’s prima facie case. The appellate opinion, however, contains no discussion of nature of the attorney’s admissions or the rationale the trial court may have had for admitting the statements. The First Department simply rejected the defendant’s argument on appeal that the former counsel must be called as a witness as opposed to introducing a transcript of the attorney’s statements. Id. at 679.The People fail to persuade that Castillo should be expanded to a general rule governing attorney admissions at arraignment.1 In People v. Brown, 98 NY2d 226 (2002), cited generally by the court in Castillo for the rule on vicarious admissions by counsel, the Court of Appeals analyzed two cases in which an attorney’s statements were admitted to impeach the defendant’s trial testimony. In the first, a defendant charged with criminal sale of a controlled substance in the third degree testified that he was at the scene of the crime for completely innocent purposes. At a pre-trial Sandoval hearing, however, his prior counsel had represented that the defendant would testify that he was there only to purchase drugs, not to sell them. The Court of Appeals upheld the introduction of the Sandoval hearing minutes as proper impeachment. In the second scenario, the court in Brown overturned a conviction for murder in the second degree because the trial court allowed the prosecution to impeach the defendant with a notice of alibi statement filed by his former attorney, despite the fact that the defendant had withdrawn it prior to trial. As the Brown court noted, there is a concern that pinning on the defendant statements made early on in the court process might inhibit a factually accurate defense and also improperly influence the accused’s right to testify. Id. at 235. Those points were underscored in several later cases, including People v. Ortiz, 26 NY3d 430 (2015)(trial court erred by permitting prosecutor to introduce statement by defense counsel at arraignment damaging to defendant while denying counsel’s application to withdraw). Significantly in People v. Brown, 98 NY2d 226, the Court of Appeals was evaluating the use of counsel’s statements at arraignment as impeachment, not on the prosecution’s direct case, an important distinction. As has been noted, “…the use of admissions may be the trial equivalent of a deadly weapon.” See US v. McKeon, 738 F2d 26 (2d Cir 1984)(circumscribing use of a prior jury argument in defendant’s retrial). Defendants who proffer their version of the facts through their testimony trial open themselves to attack. See People v. Gary, 44 AD3d 416 (1st Dept 2007).A defendant at arraignment, however, has not generally proffered a defense.2 Attorneys may make brief statements at arraignment for the purposes of bail setting before a defense is fashioned for trial with the benefit of a proper investigation and discovery. Pre-arraignment meetings with counsel are notoriously brief. See B. Kamins & W. Murray, New York Criminal Procedure, §4.01 et seq. (2017). Also cf. People v. Canales, 110 AD3d 731 (2d Dept 2013)(defendant’s conviction for criminal possession of a weapon in the second degree vacated after the People introduced videotape containing attorney concessions after attorney had met with the defendant briefly).In People v. Cassas, 84 NY2d 718 (1995), the Court of Appeals held that the attorney’s statements when turning his client in at the police precinct were not admissible as evidence of guilt on the prosecution’s prima facie case. There was no evidence that the defendant had specifically authorized the waiver of the attorney-client privilege for the statement, and as Judge Smith noted, “[t]his is particularly important in criminal cases where a defendant retains the authority to make key choices about a defense against criminal charges.” Id. at 722. See also United States v. Valenzuela, 84 NY2d 718 (1987). The court contrasted the scenario in People v. Rivera, 58 AD2d 147, where the trial court admitted an attorney’s pre-trial written statement after the defendant testified at trial to a different version of the very same crucial fact, whether or not he had a marked $20 bill in his pocket.In this case, the defense counsel made three objections to the introduction of the former counsel’s statements at trial: violation of his confrontation rights, the tendency of that evidence to shift the burden to the defendant to contradict perceived admissions, and the lack of clarity and reliability inherent in the source of the information. The Court of Appeals has settled the confrontation issues as they relate to impeachment of the defendant. See generally People v. Rivera, 58 AD2d 147, affd on op below 45 NY2d 989 (1978). See also People v. Brown, 98 NY2d 226 (2002); People v. Moye, 11 AD3d 212 (2004). However, the court also signaled in Brown that its analysis turned on an application of the rule governing informal admissions rather than formal judicial admissions.3 The potential for a confrontation issue rises if informal judicial admissions are through an agent who is not subject to cross examination.Also of significance is whether statements by counsel at arraignment are really informed by the defendant. Here, the arraignment minutes reveal that defense counsel had spoken at some length to another individual, “the witness”. There is no telling how much information came from this witness compared to what, if any, information the defendant provided to counsel. Read in context, the defendant may have merely acquiesced to the witness’s version of the facts for purposes of the arraignment. In contrast, as the court in People v. Brown, 98 NY2d 226, 232 noted, the undisturbed factual finding of the trial court was that the defendant, sitting beside his attorney at the pre-trial hearing, was “the sole source of the statements…” Accordingly, the Court of Appeals found the facts in Brown analogous to those in People v. Rivera, 58 AD2d 147. Similarly in People v. Kallami, 14 AD3 316 (1st Dept 2016), the court found it was clear from the phrasing of the attorney’s statements and all the surrounding circumstances that the defendant was the source of the information provided at arraignment.Several other factors militate against allowing the introduction of arraignment minutes: the defense attorney’s near complete control over what is disseminated at the brief arraignment hearing; the lack of information available to the defense attorney before discovery is served; and the limited time available at the arraignment stage to fashion an appropriate defense. Defendant’s current counsel also argued that the attorney who appeared at the arraignment was not the counsel hired by the defendant but someone in an “of counsel” arrangement. The record contains no information about the nature of the arrangement between the law firm hired by the defendant and the arraignment attorney. Rule 1.5(g) of the Rules of Professional Conduct provides that a lawyer shall not divide a fee for legal services with a lawyer who is not associated in the same law firm without the client’s written consent. While informal non-fee agreements to cover court appearances extend the reach of solo or small practitioners, they raise issues of competency, potential conflict, and as here, may give impetus to a later Sixth Amendment challenge. The defendant’s point that this attorney may not have the same degree of understanding as his chosen counsel is a valid one. While the Sixth Amendment does not guarantee the defendant a “meaningful relationship” with his defense counsel (see Morris v. Slappy, 461 US 1, 14 (1983)), nonetheless a last minute substitute may be much less versed in the facts of the case than defendant’s original chosen attorney and more akin to an assigned counsel whose appointment is hastily arranged.Arraignment comments of defense counsel should be permitted rarely and on occasions when the defendant testifies or otherwise opens the door through an obvious and targeted defense. Those are not the circumstances presented here. The People’s motion is denied.Dated: June 11, 2018Bronx, New York
