Blumenfeld raised concerns that the script used in the program could violate Rule 8.4(c) of the Rules of Professional Conduct, which forbid attorneys from "engag[ing] in conduct involving dishonesty, fraud, deceit or misrepresentation."
He further determined it was permissible to address alleged ethical violations in the context of a suppression motion.
But the Queens District Attorney's Office sought a writ of prohibition to restrain the judge from ruling on whether ethical rules had been violated.
The Second Department denied the writ in October 2011, declining to intervene because it viewed the prosecution's writ as a bid to restrain Blumenfeld from doing something he was "authorized" to consider, whether purported ethical violations triggered involuntary statements (NYLJ, Oct. 7, 2011).
Blumenfeld subsequently ruled that he could not determine Perez's statements were involuntary, pursuant to Criminal Procedure Law §60.45(2). Nevertheless, the judge said he found the script "clearly violated Rule 8.4(c)" because the prosecution did not keep its promise to investigate the version of events Perez laid out.
As a sanction for what he viewed as the district attorney's unethical conduct, he precluded the office from using the videotaped statement (NYLJ, April 18, 2012).
In its current appeal, the district attorney's office maintained that even if the judge correctly identified an ethical violation—-which, it maintained, he hadn't—he had exceeded his authority by precluding the evidence on that basis.
The Second Department agreed.
Skelos observed that no particular statute gave a court the power to exclude evidence that was obtained in violation of attorney ethics rules.
Moreover, the prosecution would be unable to seek appellate review of such a preclusion order, Skelos said.
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