October 23, 2012

Joseph D. Nohavicka featured in The New York Law Journal

Using Attorney Statements to Impeach Clients: Beware 'Brown-Burgos-Santos'

In a letter laden with sage advice, virtue and probity, a lawyer wrote to his soon-to-be-admitted-son that, "…before you take any precipitous legal step, you ask yourself whether you are doing harm, then you will care well for your clients. At the same time, you will elevate your profession and ennoble yourself." Peter Baird, "My Son the Lawyer," 36 Litigation 64 (2009-2010).1

The New York Rules for Professional Conduct enunciate that precautionary principle for attorneys with respect to clients as follows: A "lawyer shall not intentionally…prejudice or damage the client during the course of the representation."2 That is our version of the principle professed for the practice of medicine, attributed to Hippocrates in Of the Epidemics, Bk. I, §XI (400 B.C.): "As to diseases, make a habit of two things—to help, or at least to do no harm[.]"

Two Cases—Harm Done

On May 2, 2002, the Court of Appeals decided two cases up from the Appellate DivisionPeople v. Brown and People v. Burgos-Santos.3 The common issue in those appeals was whether defendants Tony Brown and Luis Burgos-Santos were properly impeached at trial with prior inconsistent statements made by defense counsel on their behalf. The prosecution impeached Brown with representations his attorney made at a pretrial Sandoval hearing4 concerning Brown's intended trial testimony. Burgos-Santos was impeached with a withdrawn alibi notice after he testified to a non-alibi defense. The court concluded that the statements in Brown were properly used for impeachment purposes, but that the statements in Burgos-Santos were not.

The facts relative to this article underlying the Brown/Burgos Santos case are as follows: At Brown's Sandoval hearing, his attorney told the court that Brown was present at a cocaine sale only to purchase but not to sell cocaine. At trial, however, Brown testified that he was only a bystander. The Court of Appeals held that the prosecutor was properly permitted to impeach Brown based on his attorney's statements to the court.5

The defense attorney's statements were admissible for the impeachment of Brown, the court noted, since they were (1) inconsistent with defendant's trial testimony; (2) defendant was the sole source for the attorney's statements; (3) the attorney made them as defendant's agent; and, (4) the attorney-client privilege was waived as to the statements his attorney made on the record in open court. Id.

Rationale Underlying Rule

Pursuant to CPL §60.10, the rules of evidence applicable to civil cases are applicable to criminal proceedings unless otherwise provided by statute or judicially established rules of evidence.6 In civil cases, the law long has recognized an exception to the hearsay rule for admissions made by a party.7 That same rule of evidence, therefore, applies in criminal cases.8

One species of admissions involve the informal judicial admissions made by the parties in their written submissions to the court.9 Other examples are statements made by a party at a deposition,10 a statement contained in an affidavit,11 or a bill of particulars.12 An informal judicial admission is not conclusive but is evidence of the fact or facts admitted,13 Once put into evidence, the declarant may then offer an explanation for an admission.14

On occasion, defense counsel may have to recite some of the facts of the case as a countermeasure to a harsh version of the facts put forth by the prosecution.

For defense attorneys, going into the facts underlying the case is dangerous no matter how benign or picayune they may seem, because of the Brown/Burgos-Santos rule,15which is that anything a client's lawyer states on the record, or writes in court papers, can be used against the client by the prosecution; the one exception is that a withdrawn plea of alibi may not be used to impeach a defendant.16

More Harm—Arraignment

Typically, at an arraignment, counsel will waive public reading of the accusatory instrument and enter a plea of "not guilty." If there is no bail hearing and the client is released on his own recognizance, the attorney will thank the court and, with the client, exit the courthouse. If there is a bail hearing, the attorney should present information demonstrating that his client is not a flight risk along with a respectful reminder to the court that bail is not meant to be a punitive measure and is meant only to secure defendant's return to court.

An attorney's statement at arraignment—relaying information supplied by the defendant and offered for the purpose of obtaining favorable rulings on matters such as bail—clearly falls within Brown's ambit.

To illustrate, in People v. Ortiz, 30 Misc.3d 1234(A) (Sup. Ct., Bronx Co. 2011), it was alleged that Luis Ortiz unlawfully entered a man's home, placed a razor blade to the neck of a woman, and forcibly took a chain from the neck of the man who lived there. At the arraignment, defense counsel attempted to soften the prosecutor's version of the underlying allegations:

Your honor, my understanding of the events from Mr. Ortiz is vastly different. I believe Mr. Ortiz was at this apartment looking to possibly rent a room there. An argument began between him and the landlord, …at which point the complaining witness came after him with a razor blade, which explains why it was recovered, and that it belonged to the people who live there. (Emphasis added).

Ortiz testified at trial and stated that he went to an apartment in the Bronx looking for a room for him to rent. After an argument with the man renting the room, Ortiz slapped the man. A physical altercation then ensued, during which Ortiz and the man stumbled into the apartment. While they were fighting in the apartment, the man grabbed a kitchen knife and lunged at the defendant with the knife. Ortiz testified that he was never in possession of a razor blade or knife.

The court permitted the prosecution to introduce the transcript of the arraignment and cross-examine Ortiz, (so as to put the razor blade at the scene), holding that "an attorney's statements in arraignments relaying information supplied by a defendant for the purpose of obtaining favorable rulings on matters such as bail are admissible for impeachment purposes." Id.

The evening following the cross examination of Ortiz, counsel notified the court that she had reviewed her notes from the arraignment and that she had misstated the facts related by the defendant. According to counsel, Ortiz had not stated that the complaining witness had a razor blade. Instead, according to counsel, Ortiz stated to her that the complaining witness had a kitchen knife.

Ortiz's attorney unsuccessfully moved for a mistrial on the theory that the attorney would have to be called as a witness to recant the statements made at the arraignment. The court determined that "the drastic remedy of a mistrial was not necessary to protect Mr. Ortiz's rights." Id.

Regrettably, there are many cases illustrating other arraignment casualties under theBrown/Burgos-Santos Rule.17

And More Harm—Allocution

An allocution is the formal inquiry by a trial judge and the response by the offender before sentence is imposed.18 The process consists of a series of questions designed to assure the judge that the defendant understands the charges, is guilty of the crime he is accused of, understands the consequences of a guilty plea, that he is entitled to a trial, and is voluntarily entering the plea.19

In People v. Goldstein, 51 A.D.3d 1271 (3d Dept. 2008), the defendant sped through a one-lane construction zone and two flag people had to jump out of the way to avoid being struck. The defendant was charged in a 23-count indictment but ultimately agreed to take a plea bargain.

The plea was allocuted and the allocution provided in relevant part as follows:

THE COURT: And did you ignore the traffic directions and cause one of the construction workers to jump out of the way to avoid being hit by your car?

THE DEFENDANT: I don't know if he jumped out, your honor. I know I went by.

THE COURT: Very close. You could have killed him if you hit him?

THE DEFENDANT: I don't think so. I don't know.

THE COURT: You didn't kill him, of course. But, you came so close that you created a situation that was very dangerous.

[DEFENSE COUNSEL]: Your honor, we don't dispute the allegation. My client has no recollection of particular individuals. But, we don't dispute the allegations and I have had an opportunity to review the allegations, as well as the statement with my client, and we don't dispute the…situation.

The trial court judge did not inquire whether defendant agreed with counsel's statement or otherwise sought clarification from defendant. The defendant's (actually his attorney's) admission was used against him, and ultimately harmed him, on the client's subsequent motion to withdraw his guilty plea.


In both cases, People v. Brown and People v. Burgos-Santos, the Appellate Division relied upon People v. Rivera, 58 A.D.2d 147 (1st Dept. 1977), affd on op below, 45 N.Y.2d 989 (1978) in holding that defense counsels' pretrial statements could be used to impeach defendants, where it was held permissible to use an attorney affidavit to impeach defendant where attorney acted in official capacity in filing affidavit and client was source of facts included in affidavit.

In Rivera, a "buy and bust" drug prosecution, the court upheld the prosecutor's use of a defense attorney's statement to impeach the defendant after he testified to a different version of events from the one contained in an affidavit defense counsel had submitted to the court in support of a pretrial motion. The attorney's affidavit indicated that counsel had spoken to defendant, who admitted to possession of a marked $20 bill upon arrest, but claimed to have obtained it not from selling drugs but from giving change to another person involved in the drug transaction.

At the trial, the defendant denied both that he had any involvement in the drug transaction and possession of marked buy money. The Appellate Division upheld the use of the attorney's statement for impeachment purposes, ruling that "the attorney was plainly acting within the scope of his authority, and probably with express authority, in making and filing the affidavit." Id. at 149. The Court of Appeals agreed with the Appellate Division then, and in 2002, reasserted its affirmance of Rivera with respect to attorney statements as informal admissions.

As advocates, attorneys are required to speak, or write, on behalf of their clients, and there are times when the opportunity for preparation is brief and the attorney is nevertheless thrust into emotionally charged and chaotic environments. That is when the discipline must kick in and the attorney must remember the admonition that Peter Baird gave to his to his son the lawyer: Before you do anything "ask yourself whether you are doing any harm." And do no harm.

Joseph D. Nohavicka is a partner at Pardalis & Nohavicka, in Astoria.


1. Also found at http://heinonline.org/HOL/LandingPage?collection=journals&handle=hein.Journals/laba36&div=38&id=&page= (site last visited Aug. 27, 2012).

2. RPC 1.1(c)(2).

3. People v. Brown & Burgos-Santos, 98 N.Y.2d 226 (2002).

4. Defendants in criminal actions may ask the judge for a pretrial ruling whether their convictions may be used against them if they testify. This procedure is known as aSandoval Hearing after the case that established it. People v. Sandoval, 34 N.Y.2d 371 (1974).

5. People v. Brown & Burgos-Santos, 98 N.Y.2d 226, 232-233 (2002).

6. See, e.g., People v. Bahr, 96 A.D.3d 1165 (3d Dept. 2012) (applying CPLR 4518).

7. Prince, Richardson on Evidence §8-201,p. 510 (Farrell 11th ed); Matter of MNORX, 46 N.Y.2d 985 (1979).

8. See, e.g., People v. Brown, 98 N.Y.2d 226 (2002); People v. Rivera, 58 A.D.2d 147 (1st Dept. 1977), affd on op below, 45 N.Y.2d 989 (1978).

9. See Richardson, supra at §8-219, p. 529.

10. Prince, Richardson On Evidence, §8–219, at 530.

11. Matter of Union Indem. Ins. of N.Y. v. American Centennial Ins., 89 N.Y.2d 94, 103, 651 N.Y.S.2d 383 (1996).

12. See also Gomez v. City of New York, 215 A.D.2d 353 (2d Dept. 1995).

13. Richardson, supra, at 530; People v. Brown, supra at 232; People v. Rivera, supra.

14. Richardson, supra, at §8-211, p. 520; Jack C. Hirsch, Inc. v. Town of North Hempstead, 177 A.D.2d 683 (2d Dept. 1991).

15. People v. Brown & Burgos-Santos, 98 N.Y.2d 226 (2002).

16. In Burgos-Santos, the court held that it was error to impeach the defendant with his statements contained in a withdrawn notice of alibi after he provided a non-alibi defense at trial, stating that permitting the use of withdrawn alibi statements implicates Fifth Amendment and due process concerns. However, the court deemed the error to be harmless given the overwhelming evidence of guilt.

17. See, e.g., People v. Gary, 44 A.D.3d 416, 416 (1st Dept.), app. denied, 9 N.Y.3d 1006 (2007), holding that statements made by defendant's former counsel at arraignment were deemed vicarious admissions that were properly admitted at trial to impeach the defendant; People v. Kallamni, 14 A.D.3d 316, 316 (1st Dept. 2004) (same), app. denied, 4 N.Y.3d 854 (2005); People v. Johnson, 46 A.D.3d 276, 278 (1st Dept. 2007), app. denied, 10 N.Y.3d 865 (2008), holding that statements made by a defendant's attorney as part of a bail application were admissible for impeachment purposes; and People v. Moye, 11 A.D.3d 212 (1st Dept. 2004), lv denied 4 N.Y.3d 766 (2005)(On cross-examination of defendant Moye, the court properly received statements that defendant Moye's original counsel had made at arraignment as prior inconsistent statements by Moye affecting his credibility. Moye was concededly the source of the information and counsel, attorney of record at the time, was acting as Moye's agent.) (citingBrown/Burgos-Santos).

18. Arthur W. Campbell, Law of Sentencing, (2d Ed.) p. 245, (Clark Boardman Callaghan) 1991.

19. People v. Nixon, 21 N.Y.2d 338, 345 (1967) (citing Fed. R. Crim. P. 11 (amended 1975)). See also People v. Ford, 86 N.Y.2d 397, 402 (1995).

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