MATTER OF BALTER v. REGAN, 63 N.Y.2d 630 (1984)

479 N.Y.S.2d 506, 468 N.E.2d 688

In the Matter of JOSEPH BALTER, as Assistant Public Defender of Monroe County, Appellant, v. JOHN M. REGAN, as Judge of the City Court of Rochester, Respondent.

Court of Appeals of the State of New York.Argued June 7, 1984
Decided July 3, 1984

Appeal from the Appellate Division of the Supreme Court in the Fourth Judicial Department.

Edward J. Nowak, Public Defender (Brian Shiffrin and Peter Braun of counsel), for appellant.

Robert Abrams, Attorney-General (Betsy Broder and Peter H. Schiff of counsel), for respondent.

MEMORANDUM.

The judgment of the Appellate Division should be affirmed, with costs.

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Petitioner, an Assistant Public Defender, was ordered by a City Court Judge to proceed to trial representing a criminal defendant, in spite of the fact that petitioner’s office was also representing the People’s primary witness in an unrelated criminal proceeding. Both petitioner and the People were further directed not to question the witness on the criminal charge or the plea agreement he had reached. Petitioner refused to proceed, believing that to do so would involve an ethical violation on his part and a denial of effective assistance of counsel to his client. By this article 78 proceeding, petitioner has challenged the resulting adjudication of criminal contempt.

Petitioner argues that the court’s order was not a “lawful mandate” that he was required to obey (Judiciary Law, § 750, subd A, par 3), because the order required him to represent a client in violation of both the disciplinary rules concerning the representation of clients with conflicting interests and the client’s constitutional right to counsel. Notwithstanding petitioner’s good-faith belief that the court’s order raised this conflict of interest, we agree with the Appellate Division that the court’s order was not thereby rendered unlawful. However misguided and erroneous the court’s order may have been, petitioner was not free to disregard it and decide for himself the manner in which to proceed (Maness v Meyers, 419 U.S. 449, 458). The prejudice sought to be avoided by petitioner was not irreparable; indeed, in both the case of the defendant and the witness, any prejudice could have been remedied through the appellate process.

The issues raised concerning the propriety of the penalty imposed are not set forth in the petition and, accordingly, are not preserved for review by this court.

KAYE, J. (dissenting).

Petitioner, an attorney in the Monroe County Public Defender’s office, represented Raymond Lennon, an indigent charged with several misdemeanors. When petitioner discovered, just after jury selection, that the chief prosecution witness against Lennon would be Christopher Pellitera, he informed the court that his office represented Pellitera in a pending unrelated criminal action and, noting the possible impropriety and inherent unfairness of joint representation, asked the court

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to appoint independent counsel for the witness. Instead, the court directed petitioner to proceed with the Lennon trial and prohibited him from questioning Pellitera about the pending criminal charges against him, limiting cross-examination to other prior bad acts, arrests or convictions. This ruling violated Lennon’s right to confront witnesses against him (see Davis v Alaska, 415 U.S. 308), and denied both Lennon and Pellitera the right to the effective assistance of counsel (see Holloway v Arkansas, 435 U.S. 475; People v Gomberg, 38 N.Y.2d 307; People v Frisbie, 70 A.D.2d 1053). The ruling also forced petitioner to breach his ethical responsibility by presenting him with a choice of either declining to cross-examine Pellitera, thereby violating his duty to Lennon, or seeking to impeach Pellitera as directed, a violation of his duty both to Lennon and to Pellitera, which could in addition have led to the disclosure of confidential information about Pellitera, a breach irreparable on appeal.

The importance of obedience to orders of a trial court cannot be overstated. But this concern, however vital, should not cause this court to overlook a rare instance when, as here, a trial court has so clearly abused its considerable power as to leave counsel with no reasonable alternative (see, e.g., People v Giglio, 74 A.D.2d 348 [Hopkins, J.]; De Salvo v Kaplan, 52 A.D.2d 570; United States v Wendy, 575 F.2d 1025; State v Gasen, 48 Ohio App.2d 191). Petitioner pleaded with the court in good faith to adjourn the Lennon trial so that independent counsel could be assigned for Pellitera. Faced with the court’s directive to proceed, he chose, in a most respectful manner and without regard to his personal interests, not to betray the interests of his clients. He should not be punished for that.[*]

[*] As noted in United States v Wendy (575 F.2d 1025, 1030) “[c]ontempt by an attorney is always a serious matter. While a simple rebuke or more serious censure by the court might not have the same effect as in the more tightly-knit Bar of England [n omitted], the more serious exercise of the contempt power is awesome in its implications. A citation is likely to afflict the contemnor with a `stigma of antisocial conduct.’ Note Procedures for Trying Contempts in the Federal Courts, 73 Harv.L.Rev. 353, 355 (1959). For a lawyer seeking admission to other bars or to practice before federal agencies, a citation might have considerable economic consequences.”

Judges JASEN, JONES, WACHTLER, MEYER and SIMONS concur; Judge KAYE dissents and votes to reverse in an opinion in which Chief Judge COOKE concurs.

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Judgment affirmed, with costs, in a memorandum.

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