Justice Blumenfeld
Justice Skelos
NYLJ/Rick Kopstein
A judge overstepped his authority when he precluded Queens prosecutors from using a defendant's pre-arraignment statement due to what the judge said were ethical violations by the Queens office, a Brooklyn appellate court has ruled.
A unanimous panel of the Appellate Division, Second Department, yesterday issued a writ of prohibition blocking Acting Supreme Court Justice Joel Blumenfeld (See Profile) from imposing preclusion as a sanction against the district attorney's office for a program that the judge viewed as "misleading and deceptive."
The appellate court expressed no opinion on the constitutionality or ethics of the program as applied in the case of Elisaul Perez. Moreover, it acknowledged that the judge had the power to exclude the statement if he found it to be involuntary. Rather, it said he lacked the power to act solely based on his evaluation of the program's ethics.
"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. Accordingly, as Justice Blumenfeld's order precluding the videotaped statement as a sanction for unethical conduct committed by the District Attorney's office in administering the Program in general was not mere legal error, but, rather, an improper arrogation of power, the remedy of prohibition lies," Justice Peter Skelos (See Profile) said, writing for the panel in Brown v. Blumenfeld, 2012-03981.
He was joined by Justices William Mastro (See Profile), Anita Florio (See Profile) and L. Priscilla Hall (See Profile) in a case that was argued on June 22.
Yesterday's ruling is the latest round in a face-off between the judge and the Queens district attorney about the propriety of the pre-arraignment interview program, which has been in place since 2007.
Perez faces charges including two counts of second-degree robbery for the alleged March 2009 theft of an iPod.
Just before his arraignment, Perez was read a script by prosecutors and a detective investigator that told him, among other things, "If there is something you would like us to investigate concerning this incident, you must tell us now so we can look into it."
Perez was subsequently Mirandized; he said he understood his Miranda warnings and agreed to give a videotaped statement on his version of events.
Perez moved to suppress the videotaped statement, arguing he had not knowingly and intelligently waived his rights.
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