hossu gomberg motion
DESCRIPTION
A Gomberg motion filed by the Westchester Special Prosecutor asking a judge to investigate potential conflicts of interest in the Alexandru Hossu rape case.TRANSCRIPT
COUNTY COURT: STATE OF NEW YORKPUTNAM COUNTY
XTHE PEOPLE OF THE STATE OF NEW YORK, NOTICE OF MOTION
FOR AN INQUIRYPURSUANT TOPEOPLE v GOMBERG
-against-
Return Date:November 18, 2013
ALEXANDRU HOSSU a/k/a ALEX HOSSU,(Adler, J,)
Defendant.
Putnam County Indictment Number 32-20 13X
PLEASE TAKE NOTICE, that upon the annexed Affirmation of William C.
Milaccio. Esq., duly sworn on the 28th day of October. 2013. and upon the pleadings and
proceedings heretofore had herein, the undersigned will move this Court before the
Honorable Lester B. Adler, at the Putnam County Courthouse located at 20 County
Center, Carmel, New York, 10512, on the 18th day of November, 2013 at 9:30 A.M. or as
soon thereafter as this matter may be heard, for an ORDER:
Directing an inquiry be conducted on the record pursuant to People v Gom berg,
38 NY2d 307 (1975), to, among other things: ascertain potential conflicts of interest
between defendant and his current attorney. Daniel Mentzer, Esq., that have become
apparent after recent public disclosures; advise defendant of the risks attendant to being
represented by an attorney with those potential conflicts of interest; obtain from
defendant his informed decision to either consent to being represented by current counsel,
or request to be represented by another retained or assigned attorney; and, any further
relief this Court deems just and proper.
Dated: White Plains, New YorkOctober 28, 2013
Yours, etc.,
JANET DIFIOREDistrict Attorney of Westchester County
Special District Attorney in this Matter
111 Dr. Martin Luther King, Jr. Blvd.White Plains, New York 10601(914) 995-3497
To: Daniel Mentzer, Esq.Mentzer & Sheindlin, LLP600 Mamaroneck Aye, Suite 400Harrison, NY 10528
COUNTY COURT: STATE OF NEW YORKPUTNAM COUNTY
XTHE PEOPLE OF THE STATE OF NEW YORK, AFFIRMATION IN
SUPPORT OFMOTION FOR ANINQUIRY PURSUANTTO PEOPLE v GOMBERG
-against-
Return Date:November 18, 2013
ALEXANDRU HOSSU a/k/a ALEX HOSSU,(Adler, J.)
Defendant.
Putnam County Indictment Number 32-20 13x
STATE OF NEW YORK )ss.:
COUNTY OF WESTCHESTER )
WILLIAM C. MILACCIO, an attorney duly admitted to practice before the courts
of the State of New York, under penalty of perjury, hereby affirms and states: that he is
an Assistant District Attorney of Westchester County and, acting on behalf of Special
District Attorney Janet DiFiore in this case, submits this affirmation and accompanying
exhibits and memorandum of law in support of the People’s motion for a Gomberg
inquiry (People v Gomberg. 38 NY2d 307 [1975]). This affirmation is made upon
information and belief the sources of which are: the file of this matter maintained by the
Office of the Westchester County District Attorney; conversations with Westchester
County Assistant District Attorney Fredric I. Green and other members of District
Attorney DiFiore’s staff; the minutes of the proceedings in this case on October 15, 2013;
the record of the grand jury proceeding in this case; the records of the Supreme Court,
Putnam County; visitation records from the Putnam County Jail; and, recent news reports
regarding this case.
By decision and order of the Honorable Alan D. Scheinkman. Administrative
Judge of the Ninth Judicial District, dated March 14, 2013, the Office of the Westchester
County District Attorney Janet DiFiore was appointed as Special District Attorney in the
investigation and prosecution of this matter upon the disqualification of Putnam County
District Attorney Adam B. Levy (hereinafter, “DA Levy”) from acting in this particular
case.
Defendant is charged by Putnam County Indictment Number 32-2013 with two
counts of rape in the first degree under Penal Law § 130.35(1), two counts of rape in the
second degree under Penal Law § 130.30(1), and endangering the welfare of a child
under Penal Law § 260.10(1).
The relevant facts for the determination of the instant motion are as follows:
On March 13, 2013, at the Putnam County Child Advocacy Center (“CAC”), a
Putnam County Sheriff’s Department Investigator and a Child Protective Services worker
interviewed the child victim as to how defendant had raped her on or about October 24,
2010, in her home. The interview was recorded. Outside the interview room, a Putnam
County Assistant District Attorney watched and listened to the interview via closed
circuit television, as well as the victim’s aunt, who is the victim’s guardian. During the
meeting of these parties at the CAC, it was learned that defendant had a relationship with
DA Levy. Defendant was DA Levy’s personal trainer.
As a result of this relationship, by letter dated March 14, 2013, DA Levy sought
to disqualify himself from the investigation and prosecution of this matter, and for the
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appointment of a Special District Attorney. In his application, DA Levy indicated that he
was “personally familiar with the target” of the rape investigation, and that he was asking
to be disqualified ‘in order to avoid any questions about the ultimate disposition of this
case” and because “it would be in the best interests of the criminal justice system and the
[sici ethical considerations” (see Application For Special District Attorney, attached
hereto as Peoples Exhibit I).
DA Levy’s application was granted. as noted above, by decision and order of the
Honorable Alan D. Scheinkman, Administrative Judge of the Ninth Judicial District,
dated March 14, 2013, after Westchester County District Attorney Janet DiFiore agreed
to accept the appointment as Special District Attorney in this matter (see Special District
Attorney Order, attached hereto as People’s Exhibit 2).
On March 20, 2013, the Putnam County Sheriff’s Department filed two felony
complaints in Justice Court, Town of Southeast which each charged defendant with a
single count of rape in the first degree under Penal Law § 130.35(1). A warrant for
defendant’s arrest was issued and, pursuant thereto, defendant was arrested later that day
and brought before the Justice Court for arraignment. At his arraignment, defendant
pleaded not guilty.
The day after defendant’s arrest, the Putnam County Sheriffs Department issued
a press release reporting, inter alia, that defendant lived at 70 Indian Wells Road in
Southeast. This is the home address registered by the defendant with the New York
Department of Motor Vehicles and is also DA Levy’s home address. Although
disqualified from participating in this matter, DA Levy then telephoned the Office of the
Westchester County District Attorney and requested that the Special District Attorney
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issue a public statement in response to the aforementioned report that defendant’s home
address was DA Levy’s home. This request was denied. Further, the alleged home
address of the defendant at the time of his arrest in 2013, nearly three years after the 2010
rape which occurred in the victim’s home, was and remains irrelevant to the evidence
supporting this prosecution.
On March 26, 2013, defendant appeared with retained counsel, Jeffrey Chartier,
Esq. and Stacey Richman, Esq., in Justice Court, Town of Southeast, and the matter was
adjourned to May 7, 2013. Less than a week later, Robert Y. Altchiler, Esq. (hereinafter,
“Altchiler”) officially appeared in this matter on behalf of defendant. According to
Aitchiler, he had been retained by defendant on March 29, 2013 (see Aitchiler Letter to
the Court, dated October 15, 2013, infra).
On June 6, 2013, Altchiler facsimiled a letter by the same date to Assistant
District Attorney Fredric I. Green requesting that 13 individuals, including DA Levy, be
called to testify during an upcoming grand jury proceeding. According to Altchiler, DA
Levy could testify about his “observations” of defendant during their “frequent”
interaction while defendant acted as his personal trainer and lived with DA Levy “for a
short time” and in light of DA Levy’s purported training in “recogniz[ing] sex offenders
and the behavior sex offenders tend to display.” In short, DA Levy was proffered as a
character witness for defendant.
Starting on June 7, 2013, and continuing on June 12, 2013, and June 14, 2013,
relevant evidence of defendant’s crimes was presented to a Putnam County grand jury.
The grand jury voted to not hear testimony from DA Levy.
4
On June 14, 2013, defendant also appeared before the grand jury with Altchiler,
and after waiving his right to immunity, testified on his own behalf After the completion
of defendant’s grand jury testimony, ADA Green delivered applicable legal instructions
to the grand jury, which returned a true bill.
Three days later, on June 17, 2013, Altchiler facsimiled a letter to ADA Green
indicating that, “if the case has not been voted,” he requested, inter a/ia, that the grand
jury hear testimony from DA Levy regarding the appointment of the Westchester County
District Attorney as Special District Attorney because such testimony would allegedly
“assist the grand jury in determining credibility issues connected to law enforcement.”
The request which was moot was essentially a proffer of DA Levy as an adverse witness
to the Putnam County Sheriffs actions in a case where the testimony of a child victim
was the core of the case and not the police testimony. To the point, the proffered
evidence was irrelevant to the purpose of the grand jury proceedings in this case.
On June 18, 2013, the People filed a Certificate of Indictment in Justice Court,
Town of Southeast.
On June 26, 2103, the People filed Putnam County Indictment Number 32-2013.
On July 2, 2013, defendant, represented by Aitchiler, appeared in County Court,
Putnam County (Adler. J.). Defendant pleaded not guilty, and a consent discovery order
and accompanying bill of particulars were filed with the Court and served on Aitchiler.
Shortly thereafter, Christopher York, the Chief Assistant District Attorney to DA
Levy, telephoned ADA Green and criticized the handling of this case by the Westchester
County District Attorney’s Office. York attributed DA Levy as a source of his criticism.
Aside from the meritless nature of the complaints, ADA’s York’s telephone call was
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entirely inappropriate given the disqualification of DA Levy and his Office. In hindsight,
the call appears to have been an attempt to influence the prosecution.
On July 8, 2013, the People received a motion by Aitchiler on behalf of defendant
to dismiss the indictment pursuant to CPL 190.50 and a Demand to Produce.
By an affirmation and memorandum of law, dated July 17, 2013, the People
opposed defendant’s CPL 190.50 motion, and the next day, July 18, 2013, the People also
filed and served a Demand Refusal in accordance with CPL 240.35.
Together with a letter, dated July 18, 2013, the People also provided Altchiler
items pursuant to the consent discovery, including a copy of an email, dated March 28,
2013, between prosecutors in the Westchester County District Attorney’s Office and
Putnam County District Attorney’s Office. During a subsequent conference before the
Court, ADA Green stated that he had provided Altchiler with certain discovery, such as
the aforementioned email, and Aitchiler responded that he already had a copy of the
email.
By decision and order, dated July 23, 2013, the Court denied defendant’s CPL
190.50 motion.
On or about August 14, 2013, in Supreme Court, Putnam County, a civil
complaint was filed on behalf of DA Levy against the Putnam County Sheriff
(hereinafter, “the Sheriff’) for defamation seeking, inter alia, $3,000,000 in
compensatory and $2,000,000 in punitive damages. In the complaint, DA Levy asserts
that defendant was a “family friend (4), “close personal friend” (J27), and “frequent
guest in [his] home from March 2011 through June 2012” (44). DA Levy claims, inter
alia, that the Sheriff had arrested defendant without first allegedly conducting “any type
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of case enhancement to support the [rapel charge” (j66 [emphasis in original]). DA
Levy further claims that the Sheriff falsely and maliciously made public statements about
him, including that: defendant had lived with DA Levy (W3-7); and, DA Levy had
attempted to “undermine and influence the investigation” of defendant, notwithstanding
DA Levy’s disqualification and public pronouncement that he “offered his complete
cooperation” to the Office of the Westchester County District Attorney (iJ 84, 87))
Shortly after the filing of this civil suit, and in furtherance of his own personal interests,
DA Levy held a press conference which was aired on local and national news outlets, and
appeared on CNN to discuss his civil suit, and by extension, this criminal case.2
On the heels of DA Levy’s civil suit and publicity campaign, on August 19, 2013,
the People received a motion by Altchiler on behalf of defendant seeking certain omnibus
relief, including dismissal of the indictment on several grounds. Foremost among those
grounds was the argument that the grand jury proceeding was rendered defective by an
alleged “conflict of interest” between the Sheriff and DA Levy (Altchiler Affirmation at
¶J5-l3; Defendant’s Memorandum of Law at 5-7). According to the defense theory, the
Sheriff allegedly conducted the investigation in a biased manner to harm DA Levy and
benefit himself politically, but “in the process prejudicing [defendant] and undermining
the integrity of the prosecution” (Altchiler Affirmation at 3). Altchiler claimed that the
Sheriff “precipitously” obtained a warrant for defendant’s arrest without first
‘enhanc[ing]” the case against him, and also falsely claimed to the media that, inter a/ia,
1The complaint was accompanied by a verification from DA Levy averring, under penalty of perjury, that
he had reviewed the complaint and verified the facts set forth therein as true to his knowledge, “except as to
any set forth upon information and belief and as to those, it is [his] belief that each is true.”
See e.g. http:’!edition.cnn.com’TRAI\ISCRIPTS’l308/16’nday.04.html and
(last visited on October 28, 2013).
7
he had been living at DA Levy’s residence at the time of his arrest and that DA Levy had
attempted to improperly influence the investigation (id. at ¶J6-7). These claims mirrored
the claims in DA Levy’s civil action against the Sheriff, which, as noted above, DA Levy
affirmatively publicized in the press and on national and local television. Aitchiler
opined that those media reports “undoubtedly had the potential of poisoning the jury
pool” against him and “may well have intimidated and deterred potential defense
witnesses from coming forward” (Ed. at ¶11). Blithely ignored was the more likely
prejudicial effect the publicity had on the prosecution in this criminal case and on the
child victim’s willingness to proceed with the prosecution.
On or about September 10, 2013, the People served and filed an affirmation and
memorandum of law in opposition to defendant’s omnibus motion.
On September 19, 2013, the People received a Reply Memorandum from
Altchiler.
Before the omnibus was decided, on September 20, 2013, defendant was visited at
the Putnam County Jail by Daniel Mentzer, Esq., an attorney in the firm of Mentzer &
Sheindlin, LLP. Mentzer’s law partner, Nicole Sheindlin, Esq., is his wife and step-sister
of DA Levy. Thus, Mentzer is DA Levy’s brother-in-law.
Four days after Mentzer’s visit with defendant, on September 24, 2013, during a
conference in the Court’s chambers with ADA Green and Aitchiler, Altchiler stated that
he wanted to withdraw from representing defendant due to the lack of funds to pay for his
services. The Court did not grant Aitchiler’s application, but rather directed Aitchiler to
submit his reason for seeking withdrawal in writing. Moreover, the Court suggested,
inter alia, that Aitchiler consider being paid pursuant to County Law § 18-b to avoid any
8
delay in the disposition of this matter. Accordingly, the matter was adjourned to October
16, 2013.
The case was subsequently advanced one day to October 15, 2013, and on that
date, before calling the case on the record, the Court conducted another conference in its
chambers with ADA Green and Aitchiler. During this conference, Aitchiler submitted a
two-page letter, dated October 15, 2013, requesting permission to withdraw from
representing defendant. Aitchiler stated that his relationship with defendant was
“irretrievably broken” and “conflicts” had had arisen. According to the letter, the
previous day, Aitchiler had presented defendant with a “seven-page letter, detailing the
number of conflicts” and an affidavit regarding those conflicts. Alticher stated that
defendant had refused to sign either the letter or affidavit to acknowledge his awareness
of those conflicts. Altchiler, as a matter of constitutional privilege, did not specify
defendant’s reasons for refusing to sign those documents. By his letter, Altchiler did,
however, offer to present this Court with an affidavit, albeit exparte, detailing the good
cause for him to withdraw as defendant’s attorney (Attached hereto as People’s Exhibit 3
is a Copy of Altchiler’s October 15, 2013, Letter).
Upon the completion of the aforementioned conference, the case was called in
County Court, Putnam County, with defendant also present. In light of Altchiler’s
previous statements that he would ask to be relieved because he had allegedly not been
paid, at the request of the Court, an attorney from the Legal Aid Society of Putnam
County had also appeared. The Legal Aid attorney had also interviewed defendant
regarding his finances and ability to pay for his representation. Altchiler reiterated on the
record that he was seeking to withdraw from representing defendant, stating that he and
9
defendant were in ‘actual conflict.” In response to an inquiry from the Court, defendant
confinried that he had heard Aitchiler’s application, and stated that he wanted Altchiler to
be relieved, but that he did not have funds to retain a new lawyer. With that, the Court
stated that it had asked the Legal Aid Attorney to appear and possibly represent
defendant.
The Legal Aid Attorney stated his name on the record; however before he could
continue, a person from the gallery, Lynn Bartlett, raised her hand to address the Court.
Bartlett’s daughter is the girlfriend of defendant, who has been reported to be the “nanny”
to DA Levy’s children.3 A brief recess was then taken, during which Bartlett made a
statement to Altchiler regarding funds allegedly paid to him by her.
When the case was recalled, Altchiler informed the Court that Bartlett wanted to
tell the Court that Daniel Mentzer, Esq., had “expressed interest” in representing
defendant and that she had spoken to Mentzer. Altchiler stated that he had met with
Mentzer, and he had also “expressed interest. . . and enthusiasm” about coming into the
case, but that he could only appear in this case in two months due to an engagement in
another criminal matter. Concerned about delaying the proceedings, the Court asked the
Legal Aid attorney present whether he could represent defendant. The Legal Aid
attorney reported that, based upon his interview of defendant, defendant would meet the
indigence requirement to be eligible for assigned counsel.
When the Court then began to explain to defendant that counsel would be
assigned to him to avoid any further delay of a trial, defendant requested permission to
address the Court. After being advised by the Court that anything he said was on the
See http://hudsonva1levreporter.com/putnam/201 3/1 0/smiths-defamation-defense-paid-for-by-putnam-
c4nt’i-i3jsttraIci (last visited on October 28, 201 3).
10
record, defendant stated that he had previously spoken to Mentzer, but not “in depth.”
And, seemingly referring to the Legal Aid attorney, defendant stated that he did not have
a lot of information about his finances, and that he had asked that any interview of him
regarding that subject be delayed for a few days so he “can have time to talk to
somebody.” The Court advised defendant that the case would be adjourned to October
21, 2013, and on that date, Mentzer would either appear as defendant’s new attorney or
another attorney would be assigned to represent defendant to avoid any further delays.
The case was then adjourned.
Before the next court date, on October 18, 2013, the Journal News reported that
DA Levy had acknowledged to a reporter, that he helped pay Aitchiler to represent
defendant. According to the Journal News, DA Levy had claimed that he did not hire
Altchiler and that his retainer had been paid for by “friends from the community,” but
that when more money was needed to pay for his defense, DA Levy contributed (see
Copy of October 18, 2013, Journal News article attached hereto as People’s Exhibit 4A).
The amount of money paid by DA Levy was not reported.
On October 21, 2013, defendant was produced in County Court, Putnam County.
Altchiler, Mentzer and ADA Green also appeared in Court. The Court granted
Altchiler’s request to withdraw from representing defendant. Mentzer in turn confirmed
that he was now representing defendant. Due to Mentzer’s relationship to DA Levy,
ADA Green requested permission to file a motion for the Court to conduct an inquiry of
defendant pursuant to People v Gomberg. szipra, due to the potential conflicts of interest
4By decision and order, dated October 15, 2013, the Court also denied defendant’s omnibus motion in part
and granted it in part.
11
between defendant and Mentzer. The Court granted the People’s request and the matter
was then adjourned for the People to file a motion.
After this proceeding, the Journal News reported on October 21, 2013, that
according to Aitchiler, and in seeming contravention of Judge Scheinkman’s appointment
of a Special District Attorney upon DA Levy’s disqualification from acting in this
particular case. DA Levy had not only paid (at least in part) for the defense, but he also
had attempted to be actively involved in the defense of defendant by, inter a/ia, providing
information from law enforcement (unspecified in the article), offering “tactical and
strategic” suggestions for the defense, and asking for an advance opportunity to review
any papers to be filed on behalf of defendant. Altchiler described DA Levy’s efforts to
insert himself into the defense as “brazen and overt manipulations.” According to
Altchiler. DA Levy was “intent on imposing his will on the case” and that in his opinion,
“[W]hat was good for Adam Levy was not necessarily good for [defendant]” (see Copy
of October 21, 2013, Journal News article attached hereto as People’s Exhibit 4B).
The next day, October 22, 2013, the Journal News reported that Mentzer stated
that he had met defendant through DA Levy. According to Mentzer, DA Levy was not
paying him to represent defendant, but then refused to reveal who had paid him. The
article also quoted Aitchiler: “If Adam Levy is smart, he’ll shut up about the Hossu case
and let his brother-in-law represent the client without him interfering. Alex Hossu
deserves a defense undiluted by outside influences” (see Copy of October 22, 2013,
Journal News article attached hereto as People’s Exhibit 4C). Thus, for the second time,
Altchiler expressed concerns about defendant possibly being subjected to a conflicted
representation.
12
On October 23, 2013, the Journal News reported that, according to Mentzer,
Altchiler had sought to be relieved because he had demanded more money. The Journal
News also reported that, contrary to a previously reported statement from Mentzer,
Mentzer claimed that he had met with defendant at the request of defendant’s girlfriend
and her mother, Lynn Bartlett. and that defendant’s girlfriend and her mother had paid
Altchiler. In response to Mentzer’s public statements as to why Aitchiler sought to be
relieved, Aitchiler suggested that Mentzer publicly release his seven-page letter to
defendant (see Copy of October 23, 2013, Journal News article attached hereto as
People’s Exhibit 4D).
In a later report from the Journal News, also dated October 23, 2013. Altchiler
was quoted denying receiving any payment from Lynn Bartlett, and further quoted as
saying:
‘1 think Levy acted as a good, loyal friend to Alex Hossu.
I don’t think there’s any ethical prohibition on Levy helping
the defense. But when he started to give legal advice, and
when he went around me to the client, he crossed the line.
Mr. Levy is an elected official, is a government and state
actor and I viewed certain actions by him as a violation of
my client’s right to counsel and a breach of other ethical rules”
(see Copy of October 23, 2013, Journal News article attached
hereto as People’s Exhibit 4E).
It was not reported in the article which “actions” of DA Levy Aitchiler believed had
violated defendant’s constitutional right to counsel.
On October 24, 2013, the Journal News further reported on the claim of
defendant’s original attorney that DA Levy had attempted to influence this case.
According to Altchiler, he had been repeatedly contacted by a public relations firm hired
by DA Levy to help DA Levy with publicity concerning his case against Sheriff Smith
1.)
and, at DA Levy’s request, offering to assist Hossu’s defense with “media outreach.”
The Journal News cited emails provided by Aitchiler from a representative of that public
relations firm to Altchiler. The Journal News also quoted an email from Aitchiler to
Lynn Bartlett in which Altchiler stated that he had been “manipulated for months” (see
Copy of October 24. 2013, Journal News article attached hereto as People’s Exhibit 4F).
And the public comments denigrating the prosecution of this child rape case by
sources connected to DA Levy continue. These comments continue in disregard to his
official status as the disqualified prosecutor in this case and the negative impact such
publicity may have on the case as a whole and the child victim in particular. On October
25, 2013, the New York Times reported in an article entitled “Rape Case of Prosecutor’s
Friend Spins Into County Feud” quoted a political strategist, Hank Sheinkopf hired by
DA Levy to speak on his behalf:
“Mr. Levy could have abandoned his friend of over 10 yearsand allowed political forces to rip him apart like wild dogsfighting over a steak. Instead, Mr. Levy stood by his friendand helped contribute to his legal expenses to ensure he hadan adequate defense” (see Copy of October 25, 2013, New YorkTimes article attached hereto as People’s Exhibit 5).
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WHEREFORE, for the reasons more fully set forth in the annexed Memorandum
of Law, the People respectfully request that the Court conduct an on-the-record inquiry of
defendant pursuant to People v Gomberg, szipra.
Affirmed to be True.
Dated: White Plains. New YorkOctober 28, 2013
WILLIAM C. MILACCIOAssistant District Attorney
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MEMORANDUM OF LAW
TO PROTECT DEFENDANT’S SIXTH AMENDMENT RIGHTTO THE EFFECTIVE ASSISTANCE OF COUNSEL AND ENSURE
THAT ANY CONVICTION, IF OBTAINED, IS NOT SUBJECT TO
LATER ATTACK DUE TO COUNSEL’S ALLEGED CONFLICT
OF INTEREST, THE COURT SHOULD CONDUCT THENECESSARY INQUIRY OF DEFENDANT UNDER PEOPLE vGOMBERG.
A prosecutor is “obliged to alert the court when he or she possesses knowledge of
facts from which an apparent conflict can be inferred” (People v McDonald, 68 NY2d 1,
8 [19861). A trial court likewise has the duty “to protect the right of an accused to
effective assistance of counsel. . .“ (People v Gomberg, 38 NY2d 307, 313 [1975]) when
the court is informed of a potential conflict of interest by defense counsel or is ‘aware of
facts from which it appears that conflicting interests arguably exist . . .“ (People v
McDonald, 68 NY2d at 8). This protective judicial inquiry, otherwise known as a
Goinberg inquiry, thus resolves two competing policy considerations, as explained by the
Court of Appeals:
“Since the right to effective assistance of counsel and theright to retain counsel of one’s choice may clash when aretained attorney is involved in an apparent conflict of interest,a Trial Judge has a duty to protect the right of an accusedto effective assistance of counsel. At the same time, a courtshould not arbitrarily interfere with the attorney-clientrelationship” (People v Gombeig, 38 NY2d at 313).
Thus, under Gomberg, the court must inquire on the record of the defendant “to ascertain
whether he or she has an awareness of the potential risks involved in that course and has
knowingly chosen it” (People v McDonald, 68 NY2d at 8, quoting People v Gomberg, 38
NY2d at 313-314 and citing People vMacerola, 47NY2d 257, 263 [1979] [internal
quotations marks omitted]). Critically, “[a] defendant may not always perceive the
16
existence of a conflict of interest” and, therefore, ‘the court should be satisfied . . . that
the defendant’s decision to proceed with his attorney is an informed decision” (People v
Gomberg, 38 NY2d at 313 [citations omitted]). Some actual conflicts are so severe that
they can never be effectively waived (United States v Schwarz, 283 F3d 76 [2d Cir.
2002]). The issue raised by an attorney’s potential conflict of interest implicates not
only the Sixth Amendment right of the accused, but also the interests of the courts in
preserving the integrity of the process and the government’s interests in ensuring a jury
verdict and a fair trial” (United States v Locasio, 6 F3d 924, 931 [2d Cir. l993]).
In this case there has been public disclosure of potential conflicts of interest
between defendant and his new attorney, Daniel Mentzer, Esq. stemming from the fact
that Mentzer is the brother-in-law to Putnam County District Attorney Adam B. Levy,
who is disqualified by court order from acting in this case, and who has contributed to the
defense of the case, and both sued and publicly attacked the Putnam County Sheriff and
other officers from the Sheriff’s Department in reference to this case. Therefore, this
Court should ascertain the nature of any conflict and advise defendant of that conflict and
the risks attendant to it, thereby allowing defendant to make an informed decision to
either allow Mentzer to continue to represent him or find substitute counsel. There is a
substantial possibility that those potential conflicts of interest are the same conflicts
which led defendant’s original attorney, Robert Aitchiler, Esq., to withdraw from
representing defendant, and indeed those conflicts present a greater risk to defendant of
receiving effective and conflict-free representation due to the familial relationship
The failure of a cowl to make the inqui, when appropriate, requires a reversal of a conviction when a
defendant can “demonstrate[e] that a conflict of interest, or at least the significant possibility thereof did
exist (People v Lombardo. 61 NY2d 97. 103 [19841, quoting People v Macerola, 47 NY2d at 264
[internal quotation marks omitted]); and the conflict “bears a substantial relation to the conduct of the
defense” (People v McDonald, 68 NY2d at 9 [internal quotation marks and citations omitted]).
17
between Mentzer and DA Levy. If DA Levy was “intent on imposing his will on the
case” with Aitchiler at the helm (People’s Exhibit 4B-C), the problem is only exacerbated
by his brother-in-law’s substitution. As demonstrated below, although defendant and DA
Levy are reportedly close personal friends, they do not necessarily have an “identity of
interest[s]” in this case (People v Carncross, 14 NY3d 319, 329 [2010]), due to DA
Levy’s professional and ethical responsibilities as the elected Putnam County District
Attorney, and DA Levys personal. political and economic interests; as defendant’s prior
attorney has already publicly stated, what is good for DA Levy may not be good for
defendant (People’s Exhibit 4B).
Notwithstanding the order disqualifying DA Levy and the Office of the Putnam
County District Attorney from the investigation and prosecution of this matter, DA Levy
remains the highest ranking law enforcement officer in Putnam County, subject to the
professional and ethical duties and responsibilities which flow from that position. DA
Levy has also publicly pledged his cooperation with the Office of the Westchester
County District Attorney in this matter. Given his elected position and that public
statement, DA Levy’s interests are plainly in potential conflict with those of defendant,
who is charged with committing a serious and violent felony offense in Putnam County
while DA Levy was in office. Pivotally, despite DA Levy’s disqualification to further the
“best interests of the criminal justice system” and unspecified “ethical considerations”
(People’s Exhibit 1), the decision and order granting that application (People’s Exhibit 2),
and DA Levy’s public statements offering his complete cooperation to the prosecution,
there is also mounting and substantial public claims that DA Levy has sought to influence
defendant’s prior attorney and the defense, and, therefore, defendant must be advised
18
regarding the potential risks resulting from any similar interference with his current
attorney, DA Levy’s brotherin-law.
DA Levy’s influence of the defense has apparently included his payment of
defendant’s legal fees (People’s Exhibit 4A). DA Levy has now publicly acknowledged
that he paid. at least in part, for Altchiler’s representation of defendant, a fact creating the
possibility of a conflict of interest (see United States v Locasio, 6 F3d at 932 [“[T]he
acceptance of ‘benefactor payments’ may subject an attorney to undesirable outside
influence and raises an ethical question as to whether the attorney’s loyalties are with the
client or the payor”], quoting In re Grand Jury Subpoena Served Upon John Doe v
United States, 781 F2d 238, 248 n6 [2d Cir. 1986]; see also Woody Georgia, 450 US
261, 269 [1981] [noting the “inherent dangers that arise when a criminal defendant is
represented by a lawyer hired and paid by a third party”); Matter ofPriest v Hennessy, 51
NY2d 62, 70 [1980] [‘[T]he payment of legal fees may. in a proper case, create a conflict
of interest even though it does not form the basis for a claim of privilege.”); NY Rules of
Professional Conduct, Rule 1.7, Comment [13] [allowing for payment from third party
provided client is ‘inforrned of that fact and consents and the arrangement does not
compromise the lawyer’s duty of loyalty or independent judgment to the client”]; see e.g.,
People v McCutheon, 109 AD3d 1086 [4th Dept. 2013] [finding the court erred by not
conducting inquiry after learning that the defendant’s legal fees had been paid for by
persons with interests potentially in conflict with the defendant]).
Neither DA Levy nor Altchiler has confirmed the amount of money paid by Levy
for Altchiler’s service. Although Lynn Bartlett has made public statements that she paid
Altchiler, Altchiler has publicly denied receiving any payment from her. Menzter has
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denied that he has been paid by DA Levy, but given past representations to this Court that
there was no longer any funds to pay for defendant’s legal representation, the question of
who is now paying Mentzer or whether Mentzer is representing defendant for some other
consideration from DA Levy remains open. Regardless, the potential conflicts of interest
persist because, according to defendant’s original attorney, DA Levy’s involvement with
the defense exceeded any passive “outside influence” from his benefactor payments.
Aitchiler has stated that DA Levy has not only been actively determined to
influence the course of the defense, he has sought to “impose his will on the case” and
that his attempts amounted to “brazen and overt manipulations” (People’s Exhibit 4B).
Of equal significance, Altchiler has stated that there was a conflict of interest between
DA Levy and defendant As Altchiler stated to the Journal News, “In my view, what was
good for Adam Levy was not necessarily good for Alexandru Hossu” (People’s Exhibit
4C). Lastly, Altchiler’s request to be relieved due to conflicts (People’s Exhibit 3),
undisclosed at the time but now apparently based, at least in part, upon DA Levy’s
reported interference, is further evidence of the potential conflict between defendant and
Mentzer, DA Levy’s brother-in-law.
In addition to the conflict between defendant and DA Levy arising from DA
Levy’s professional and ethical obligations, as noted above, DA Levy also has political
and economic interests that potentially conflict with defendant’s interests. Any
conviction ofdefendant, even one pursuant to a plea bargain which may be highly
beneficial to defendant, would be potentially politically detrimental to DA Levy as a
result ofhis publicly stated close association with defendant Indeed, DA Levy evidently
believesthisisso,asitisapredicateforhiscivilsuit Thus,anattorneyadvancingDA
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Levy’s interests over those of defendant might either not engage in any plea negotiations
or steer defendant away from a plea and towards trial.
Moreover, because of the apparent political acrimony between DA Levy and the
Putnam County Sheriff, and DA Levy’s defamation suit against him, DA Levy also has
an additional and independent political and economic interest in pursuing any defense
which focuses on the propriety of the Sheriffs conduct, however tangential that conduct
may be to the defense of the rape allegations by the child victim against defendant. Thus,
an attorney unduly influenced by DA Levy might favor a strategy which emphasizes the
claims raised by DA Levy in his civil suit. Judged in hindsight and with the benefit of
Aitchiler’s recent revelations, Altehiler’s dismissal motion which was denied by this
Court as meritless, primarily focused on the propriety of the Sheriffs investigation of the
case after the child came forward with her rape complaint and tracked the claims raised
by DA Levy in his defamation suit.6
These potential conflicts must of course be considered by the Court in conjunction
with Altchiler’s letter to the Court seeking withdrawal and his subsequent public
statements. In his letter to the Court, Aitchiler requested to be relieved due to conflicts of
interest which he did not divulge presumably due to attorney-client privilege (People’s
Exhibit 3). And, thereafter, he has apparently stated, unequivocally so, that the interests
of DA Levy diverged from those of defendant, and DA Levy attempted to interfere with
the defense, as noted above (People’s Exhibits 4B-E). Any representation from Altchiler
6 It is also worth noting that, long before the public disclosures regarding DA Levy’s alleged attempts to
influence the defense, the People wrote in opposition to Aitchiler’s motion to dismiss that “defendant’s
claim that the grand jury’s decision to indict was somehow prompted by media reports cited by him is both
curious and illogical. In theory, it is DA Levy, an elected and ranking law enforcement official in Putnam
County, who might consider it prejudicial to him to be linked to defendant, an accused rapist” (People’s
Memorandum of Law in Opposition to Defendant’s Omnibus Motion at 25 [emphasis in original]). Thus,
even before the recent disclosures, Aitchiler’s choice of some arguments appeared to have been raised with
DA Levy, not defendant, in mind.
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that there is a potential conflict of interest between Levy and defendant should be given
great weight by this Court because Altchiler is privy to information provided to him by
defendant, and to the available evidence and defenses (compare People v Hai’kins, 11
NY3d 484, 492 [2008] [“[lIt is defense counsel who is charged with the single-minded,
zealous representation of the client and thus, of all the trial participants, it is defense
counsel who best knows the argument to be advanced on the client’s behalf.”]). Aitchiler
is also privy to the direct communications between himself and DA Levy, which, notably,
are not protected by attorney-client privilege. Those communications need to be
explored. So too must the Court explore Lynn Bartlett’s alleged payment of legal fees on
behalf of defendant, particularly in light of both Aitchiler’s public denial that she had
paid him and her daughtef s relationship to DA Levy.
Against this backdrop, it is manifest that there remains potential conflicts of
interest between defendant and his current attorney, Daniel Mentzer, Esq. because the
specter of DA Levy’s undue influence on the defense is now more acute due to Mentzer’s
familial relationship to Levy. Because of its significance, it bears repeating that Mentzer
is Levy’s brother-in-law. And DA Levy’s step-sister practices law as her husband’s
business partner. In that respect, it is also noteworthy that, under the New York Rules of
Professional Conduct regarding a conflict of interest between an attorney and his or her
client, a firm of lawyers is considered, in effect, to be one lawyer (id. at Rule 1.10
[“Imputation of Conflicts of Interest”]), thus, further cementing the connection between
Menzter and DA Levy. While Altchiler could have arguably been influenced by DA
Levy’s payment of defendant’s legal fees, he ultimately showed some independence from
Levy by seeking to withdraw from the case (and his subsequent public statements).
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Given Mentzer’s familial relationship to Levy, there exists a greater potential conflict of
interest between him and defendant because, unlike Aitchiler, Mentzer arguably faces
greater pressure to take a course of action consistent with Levy’s interests.
In light of his arguable conflict of interest, all being played out in the public, this
Court must conduct an inquiry on the record pursuant to People v Gornberg, supra, to
ascertain the true nature of the potential conflicts and determine whether defendant is
aware of the risks attendant to such conflicts. At this juncture, the People are not seeking
to disqualify Nentzer. To reiterate, the conflicts of interest discussed are simply
“potential” ones, and the People by this application are merely seeking a judicial inquiry
under Gomberg to ensure that the defendant is fully aware of those potential conflicts and
with that knowledge wants counsel’s continued representation. Of course, if an actual
conflict exists, it may be so severe as to be unwaivable as a matter of law.
The inquiry is limited, avoiding any intrusion on the attorney-client privilege or
possible defenses (People v Gornberg, 38 NY2d at 313 [noting the limited nature of the
inquiry]). As noted above, any inquiry regarding the source of funds is not privileged
(Matter ofPriest v Hennessy, 51 NY2d at 70). The Court should conduct an inquiry of
Aitchiler regarding both his public allegations of a conflict and DA Levy’s reported
attempts to interfere with the defense. Altchiler should be made to produce for this
Court’s review the affidavit and letter he presented to defendant detailing the conflicts
which apparently led him to withdraw from representing defendant. Altchiler has not
only given defendant’s current attorney a copy of the seven-page letter, he has invited
him to make it public. This inquiry, further, should also take place before trial (People v
Gomberg, 38 NY2d at 314).
Furthermore, the Court should appoint independent counsel to assist defendant in
making an informed decision on the question of the continuing representation by his
current defense counsel, Daniel Mentzer (see People v Tancredi, 19 Misc 3d 1109(A),
2008 WL 795771, *2..3 [Sup Ct West Co 2008] [court appointed independent counsel to
advise prosecution witness when defense counsel represented witness as victim in civil
rights suit and defendant in related criminal case]; see also United States v Curelo, 680
F2d 881, 888-891 [2d Cir. 1982] [advising trial courts on available options in inquiring
about potential conflict, including the defendant obtaining advice from independent
counsel]). After the appointment and advice of counsel, and with appropriate time to
consider his options, the Court should inquire of defendant regarding his understanding
of any potential conflict of interest and the risks created by that conflict. Thereafter, the
Court should inquire of defendant whether he chooses to be represented by Mentzer, or
seek other retained or assigned counsel.
Given the extent and content of the varying public disclosures by both DA Levy
and defendant’s former attorney, this Court should take pains to clarify the situation not
only to protect defendant, but the integrity of the process itself An on-the-record
Gornberg record inquiry is necessary to ensure that defendant understands the risk created
by any conflict, that he makes an informed decision whether to proceed with his current
counsel, and ultimately receives effective assistance. The Court should further determine
if the conflict of interest is waivable as a matter of law. Absent such an inquiry, a
conviction in this matter would be susceptible to attack from defendant and present him
with a built-in claim on appeal based upon facts, which although apparent from recent
public disclosures, are largely unknown to the People.
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CONCLUSION
For the reasons discussed, therefore, the People respectfully request that the Court
conduct an on-the-record inquiry of defendant pursuant to People v Gomberg.
Respectfully Submitted,
JANET DiFIORE
District Attorney ofWestchester County
Special District Attorney in this Matter
Westchester County CourthouseIll Dr. Martin Luther King, Jr., Blvd.White Plains, New York 10601(914) 995-3497
WILLIAM C. MILACCIORICHARD LONGWORTH HECHTAssistant District AttorneysOf Counsel
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