In re Palmieri , 162 N.Y.S. 799 ( 1916 )

Clarke, P. J.:

The respondent was admitted to the bar in February, 1901. The charges grow out of his conduct of the defense in the case of-People v. De Lane, tried in the County Court of Bronx county in March, 1915. One John De Lane was indicted by the grand jury of Bronx county under section 2460 of the Penal Law for having received from one Jeanette Annette the proceeds of her prostitution. This woman had verified a complaint before the committing magistrate and had appeared before the grand jury and testified, and upon her testimony an indictment was found on October 14, 1914. Shortly thereafter, and while under detention as a witness, she made her escape and could not thereafter be discovered, although diligently sought for. Subsequently, on February 1, 1915, two other indictments were found against De Lane charging similar offenses, upon the testimony of two other women who claimed to have been present upon occasions when the Annett woman paid the proceeds of her prostitution to De Lane. Upon one of these latter indictments De Lane was put upon trial. Some time before the trial the attorney, who had theretofore represented him called upon the respondent and stated that De Lane desired counsel in the case. Two interviews thereupon had between the respondent and De Lane resulted in respondent’s retainer and his consent to defend him. In the course of those interviews respondent was informed that the Annette woman was the woman who had made the charges; that for some time she had been kept by the district attorney in several flats, instead of being put in the city prison or house of detention, and that thereafter she had gone to Amsterdam, N. Y., in order to keep away from the district attorney. The respondent admitted that when he asked De Lane how he knew this, the latter said: “I call her up once in a while and speak to her and she tells me all about it; in fact, I send her money.” In this interview De Lane handed the respondent a copy of the indictment upon which he was to be tried, and the respondent found that her name was not upon the indictment. Up to this time respondent did not know of any prior indictment on the testimony of the Annette woman, and the respondent advised De Lane that he had nothing to fear if the Annette woman denied that she gave him any money, and he insisted that she be brought to New York. De Lane thereupon got into communication with the woman by long-distance telephone, and on the morning of March 9, 1915, which was the day upon which the trial was to be commenced, she came to the respondent’s house with a suitcase in her hand and told respondent that she had just arrived from Mayfield, which is a place north of Amsterdam. Upon being questioned by respondent, she confirmed De Lane’s statement to the effect that she had been kept by the district attorney in two apartments. She denied having given money to De Lane, but-admitted that she had made a contrary statement to the district attorney. When asked by the respondent whether she had signed any statement to that effect, she said, “No,” and also stated that she had not appeared before the grand jury or in any other judicial proceedings. The district attorney in his opening to the jury stated: “Jeanette Annette will not be a witness here. Her two comrades or associates will be witnesses. She will not be a witness, because of the fact that after I had placed her in an apartment here in the Bronx, some one came to that apartment and asked her to go down town, a Mrs. Mancini, or a woman who calls herself Mrs. Mancini, the alleged wife of a man named Tony Rich, and a pal of a fellow named Pandolphi. She came up to the Bronx, had a whispered conversation with this girl, the girl went out with her, and the girl has never been seen since. That is how I will account for the absence of Jeanette Annette, the girl who first made the complaint in this case against De Lane, the girl with whom he lived; the girl who kept him for years here in his apartment in the Bronx.”

By this statement the respondent was fully informed that the Annette woman was the complaining witness, and that the district attorney regarded her as a material witness for the prosecution if her testimony could be obtained, and also that while she had been in the custody of the district attorney she had been enticed away and that the district attorney would account for her absence by proof of this fact. The respondent objected to this statement of the district attorney. He testified in this proceeding that he regarded it as very prejudicial to have the defendant’s name connected with the disappearance of this woman.

The trial proceeded, and after producing several witnesses who gave direct testimony as to the offense charged, the district attorney called two detectives who testified concerning the disappearance of the Annette woman, their search - for her under the direction of the district attorney and their unsuccessful efforts to find her. These witnesses were not cross-examined by respondent because, as he testified, there was absolutely no question that the woman had disappeared.

The People then rested. The respondent made the usual motions and then asked for an adjournment until the following morning on the ground that he had not decided whether to sum up or to open in the morning. After a lengthy discussion upon this point between the court, the respondent, and the district attorney, and a short opening by the respondent, an adjournment was had until the following morning.

•From the opening of respondent and his colloquy with the court, it is clear that he had not then decided to call the. Annette woman. He testified that he knew that if she testified truthfully, she would have to testify as to the way in which she got to Amsterdam, that she had come back because De Lane had asked her to and that De Lane had been, sending her money while she was in hiding because she needed it for her support, and that while hidden from the district attorney she was accessible to the counsel for the defendant. It is clear that if the witness were produced after the occurrences on the first day of the trial and testified truthfully as to her connection with the defendant and his counsel, the jury could have reached no other conclusion than that the defendant had to do with her disappearance. This must be borne in mind in considering what followed. Before coming to court on the second day of the trial, and at seven-thirty that morning, the respondent had another interview with the Annette woman, who was again brought to respondent’s home on Ocean Parkway, Coney Island, pursuant to his request. She did not, however, appear in the court room during the morning, which was taken up with the examination of character witnesses. The respondent called her to the stand in the afternoon. When she entered the court room she was carrying a suitcase. Respondent examined her as follows: “ Q. Where do you live ? A. Now I have no residence at all, I don’t live anywhere just at present. Q. What did you have in your hand when you came in here ? ” An objection to this question was sustained.

When questioned before the grievance committee as to his reasons for asking that question, respondent testified: “ Q. Why did you think she brought that bag into court? A. My impression was to lend belief that she had just arrived from Mayfield, but as a matter of fact, she had arrived, I believe, the day before.”

Respondent’s examination of the Annette woman proceeded: "Q. Where did you come from, Miss Annette ? A. Why, I just came from Mayfield, N. Y. Q. Where is Mayfield, N. Y.’? A. It is up the State; just how far I couldn’t tell you. Q. Is it near any great city ? A. I don’t know that; I couldn’t tell you. Q. How did you get from Mayfield to New York ? A. Why, I

came down on the New York Central and Hudson River; I came down on the train last night; I came down here because I read in the paper that Mr. De Lane’s case — ”

So that at the very outset of her testimony this witness testified falsely to respondent’s knowledge in answer to his questions. She further testified on her direct examination that she did not have to come; that nobody knew where she was to bring her here, but that she came anyway to give testimony in favor of De Lane. The essential parts of this testimony were false, to respondent’s knowledge.

Upon cross-examination the reasons of the witness for coming to court were further inquired into. In answer to questions put by the court, she produced a clipping of an evening paper of the day before and testified that that was the clipping she had read in Mayfield which induced her to come to • New York.

Having testified that she had taken the nine minutes past eleven train the night before from Amsterdam and arrived in New York that very morning at five minutes past five, and that no one knew she was coming to court, it became necessary for her to account for her actions from the time of her alleged arrival until her appearance in court. In her efforts to do this she was led from one lie to another, and although the falsity of her testimony is apparent, she successfully concealed from the court and the jury the fact that she had come to New York at the request of the defendant and had been in consultation with the defendant and his counsel for two days. Respondent did nothing to correct this testimony; on the contrary, his repeated attempts to emphasize the fact that the witness had appeared with a suitcase in her hand, even going so far as' to have the suitcase offered and marked in evidence, were evidently made to support her testimony that she had come that day from up the State. The result finally was that when the case went to the jury, although it had been proven by witnesses, and even by the production of the testimony of the Annette woman before the grand jury, that she had on several occasions paid the proceeds of her prostitution to De Lane, her false testimony with regard to her reasons for coming to court had succeeded in so far as to conceal the actual facts. In so far as her false swearing was successful, the respondent took advantage of it in his summing up. That she had lied had become evident, and the respondent admitted it to some extent. That she had come to court pursuant to his instructions and the instructions of his client nobody knew, and the. respondent took advantage of it by adopting her statements on this point and claiming credit for them, although he knew they were false. It is only necessary upon this point to recite the following statement of the respondent in his summing up to the jury: “We have got her here, and, thank God, gentlemen of the jury, that Divine Providence has brought that woman here. If it was the Evening Journal, I thank the Evening Journal. If it was anybody else — she said it was the Evening Journal that she read it in, and by the way, she produced a clipping to the Judge, if I am not mistaken; isn’t that right, Judge ? The Court: Yes. Mr. Palmieri: Thank God, I say to the press.”

The learned official referee concludes that respondent’s conduct in not disclosing the false swearing of the Annette woman and insisting that credit should be given to statements made by her which he knew to be false, as above detailed, cannot be overlooked because they constitute gross professional misconduct. The able counsel for the respondent has attempted to justify this conduct upon the ground of the duty which an attorney owes to his client in a criminal case. We do not admit that counsel’s obligation to the court of which he is an officer is any less stringent in a criminal than in a civil case. Subdivision 2 of section 88 of the Judiciary Law (Consol. Laws, chap. 30; Laws of 1909, chap. 35), as amended by chapter 253 of' the Laws of 1912 and chapter 120 of the Laws of 1913, authorizes this court “ to censure, suspend from practice or remove from office any attorney * * * who is guilty of professional misconduct * * * deceit * * * or any conduct prejudicial to the administration of justice.” The statute does not differentiate between criminal and civil proceedings. Attorneys are not admitted eo nomine to practice in the criminal or civil courts. They are admitted to all the courts of the State. They cannot divest themselves of any of their professional obligations by passing from one forum to another. We have expressed our views as to the duties and responsibili- ' ties of an attorney where false testimony has been offered to his knowledge in Matter of Hardenhrook (135 App. Div. 634; affd., 199 N. Y. 539); in Matter of Schapiro (144 App. Div. 1), and Matter of Mendelsohn (150 id. 445), and where statements have been made by him to deceive the court in Matter of Goodman (158 App. Div. 465). We cannot think that an attorney conforms to professional standards where he permits a witness procured by him, and regarded by him as highly important, to stage a play by suddenly appearing in the court room with a suitcase in her hand, and by permitting her to testify that she had just arrived on an early morning train, that no one knew of her coming, and that her attention had been called to the trial by an evening paper read in an up-state town the night before, when he knew that she had been sent for by his client, had been at his home in consultation with him in a distant part of the city each day of the trial, and, to his knowledge, was deliberately and knowingly testifying falsely. His failure to say to her on her first statement that she had just reached town that morning, “Why, are you not mistaken? Did you not come to see me yesterday ? ” is susceptible to the inference that he knew exactly what she was going to testify to, and his second question as to what she had in her hand when she entered the court room was to draw attention to the suitcase and add verisimilitude to her narrative. If there be any grounds for not holding respondent to a strict accountability for her false testimony, there certainly is no excuse for his adopting such false testimony in his own summing up, for which he was alone responsible. For the expression of his thankfulness to God for the intervention of Divine Providence in producing this witness, when he himself was the instigating cause by the direct instrumentality of his client, he must be held personally responsible, as attempting thereby to deceive the court and jury by thus solemnly ratifying her false testimony.

We approve of the conclusion of the learned official referee, that respondent has been guilty of gross professional misconduct. We think such conduct constituted deceit, was prejudicial to the administration of justice, and that respondent is unfit to continue the practice of the law. He is, therefore, disbarred.

Scott, Smith and Davis, JJ., concurred; Page, J., dissented.