Court Upholds Conviction But Faults Deputy Over Pamphlet

, New York Law Journal

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ALBANY - A suspect's conviction and 18-year sentence should stand, despite the "appalling" conduct of a sheriff's deputy in slipping a religious pamphlet into the defendant's pocket during his trial urging him to confess, a unanimous upstate appellate court ruled Thursday.

The court credited the trial judge, Albany Supreme Court Justice Dan Lamont, with performing the required colloquy with defendant Charlie Robles when the pamphlet came to light to make sure Robles was not acting under pressure from the government and understood his decision not to testify in his own defense.

Writing for the Appellate Division, Third Department, panel in People v. Robles, 105103, Presiding Justice Karen Peters (See Profile) said Lamont's colloquy was "both adequate to safeguard the sanctity of the defendant's fundamental right to testify and sufficient to ensure that his ultimate decision not to testify" reflected his own free will.

"Thus, despite the unusual —and perhaps unprecedented—circumstances presented in this case, we cannot say that defendant's right to a fair trial was compromised or that reversal is otherwise warranted on the basis of the indefensible conduct of the deputy sheriff," Peters wrote.

Justices John Lahtinen (See Profile), Leslie Stein (See Profile) and John Egan Jr. (See Profile) joined in the 4-0 ruling.

The decision rejected Robles' contention that the deputy's action represented intolerable interference in his trial and warranted reversal of his convictions for first-degree robbery and first-degree burglary and a new trial (NYLJ, Nov. 18, 2013).

According to the Third Department panel, the pamphlet said, "Yes, you have the right to remain silent. You have the right to remain in your sins. But please don't. Your conscience testifies against you. Confess your sins" or "spend eternity in a prison called hell."

The pamphlet was prepared by the Ten-Four ministries, a Christian group that seeks to minister to members of the law enforcement community, according to Thursday's ruling.

The deputy put the pamphlet into Robles' back pocket when he was helping transport the defendant from the courthouse to the county jail following the second day of Robles' trial.

The judges said that while the pamphlet was indeed an attempt by the deputy to affect Robles' "free and unhampered decision" about whether to testify, Lamont properly carried out his "duty" by directly discussing with the defendant his decision, as laid out in United States v. Hung Thien Ly, 646 F.3d 1307 (11th Cir. 2011), and Ortega v. O'Leary, 843 F.2d 258 (7th Cir. 1988).

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