2011-10-14 / Top Stories

District Attorney Brown,Judge Blumenfeld Slug It Out

By Howard Schwach

Queens District Attorney Richard Brown Queens District Attorney Richard Brown A Brooklyn-based appellate court has declined to block a Queens judge from ruling on the ethics of a program in which prosecutors interview suspects in central booking prior to arraignment and before they have been assigned counsel.

A unanimous panel of the Appellate Division, Second Department, rejected a request from Queens District Attorney Richard A. Brown for a writ of prohibition against Acting Queens Supreme Court Justice Joel L. Blumenfeld.

Blumenfeld was the judge who recently freed convicted Far Rockaway killer Kareem Bellamy after 14 years in prison, sparking the ire of Brown.

While Blumenfeld ruled that there was sufficient evidence to warrant a new trial, Brown, though his assistant district attorney Brad Leventhal, argued that the new evidence was tainted and that a new trial was impossible under new procedural rules. For that reason, against the urging of the District Attorney, Blumenfeld rather than sending Bellamy back to prison on his original conviction, freed him.

Judge Joel Blumenfeld Judge Joel Blumenfeld Blumenfeld has sparked the ire of Mayor Michael Bloomberg as well. Bloomberg recently asked that the judge not be reappointed.

The dispute with Brown stems from a suppression hearing called by Justice Blumenfeld in a robbery case against Elisaul Perez.

At the hearing, Justice Blumenfeld expressed concern about the way prosecutors had obtained evidence against Perez through the pre-arraignment interview program in operation since 2007.

The judge solicited an opinion from Ellen Yaroshefsky of the Benjamin N. Cardozo School of Law, who concluded that the pre-arraignment questioning was unethical.

As of September 2010, when the office filed its argument, more than 3,500 defendants had given either confessions or statements during pre-arraignment interviews.

Brown argued before the Second Department that the judge lacked the legal authority to make the inquiry into the program.

Blumenfeld responded that Brown was trying to “muzzle” him. Brown hotly denied that, saying that he was merely arguing that a suppression hearing was not the proper forum for challenging the ethics of his office.

Writing for the panel, Justice Ruth C. Balkin noted that prohibition is an “extra- ordinary” remedy that is not available “merely to correct or prevent a mistake, error in procedure, or error in substantive law.”

Those cases should be left to the “ordinary channels” of appeal or review, she said, but “the abrupt intervention of prohibition” should be granted only in rare instances where a court has exceeded its jurisdiction or powers.

Here, she said, Justice Blumenfeld’s examination of prosecutorial ethics would be authorized if he considered it part of an inquiry into whether the defendant’s statements had been invol- untarily made, an issue he is “authorized” to entertain.

The judge acknowledged that if Brown was correct that the prosecutor’s purported ethical conduct had no bearing on voluntariness, the judge may have committed legal error.

But she said that any such error would not be of the kind that calls into doubt the lawfulness of the whole proceeding. “Consequently, prohibition does not lie under those circumstances,” she held.

“We are reviewing the decision, but it is significant to note that the Court denied the Article 78 based on procedural grounds and did not reach the merits,” District Attorney Brown said in a statement.

The case also attracted numerous amicus briefs, including filings from the Legal Aid Society, the New York Civil Liberties Union, the District Attorneys Association of the State of New York, law school professors and bar organizations.

The proceedings against Perez have been stayed pending the outcome of the case. Now that the court has ruled, it awaits a potential appeal.

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