Lawyer Claims D.A. Subpoena Could Impact Defense Counsel

, New York Law Journal

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Vinoo Varghese
Vinoo Varghese of Varghese & Associates

Although the Manhattan District Attorney's Office has withdrawn a subpoena issued to a criminal defense attorney because the witness the office was investigating has pleaded to a misdemeanor, prosecutors continue to defend the subpoena as a proper exercise of their authority and claim it does not violate attorney-privilege rules.

Defense attorney Vinoo Varghese of Varghese & Associates, the target of the subpoena, argues otherwise. He and his lawyers are seeking a ruling on his motion to quash, claiming the issuance of such subpoenas could have repercussions for the entire criminal defense bar. The Legal Aid Society has filed supporting papers.

"It is hard to imagine a grand jury summons with a more chilling effect on the unique constitutional role of defense counsel and on every attorney who performs it," wrote Steven Wasserman, a staff attorney at Legal Aid.

Varghese's case also has drawn the attention of the National Association of Criminal Defense Lawyers. Two of the group's attorneys, Lawrence Goldman and Elizabeth Johnson of Goldman and Johnson, are representing Varghese pro bono to quash the subpoena.

Varghese represents Richard Hovan, a former teacher at Riverdale Country School in the Bronx charged with rape and engaging in sexual conduct with a teenage student. Varghese was served with a subpoena to appear before a grand jury investigating a witness in Hovan's case, Marina Bontkowski.

Varghese moved before Justice Charles Solomon to dismiss Hovan's indictment, asserting that the subpoena is "outrageous government conduct," and continued to move to quash it.

Last month, the district attorney withdrew the subpoena after Bontkowski, Hovan's ex-fiancee, pleaded guilty to third-degree perjury, a misdemeanor.

The district attorney claims Bontkowski told prosecutors she saw Hovan on a couch with a high school student who was topless. But prosecutors said she perjured herself when she testified before a grand jury in 2012 that she couldn't remember whether the student was wearing a shirt.

Prosecutors subpoenaed Varghese to learn what he and Bontkowski discussed before she testified.

In court papers responding to Hovan's dismissal motion, Assistant District Attorney Shanda Strain, citing electronic messages recovered by her office, said evidence "strongly suggests" that Bontkowski complied with Hovan's requests that she speak with Varghese before testifying.

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