People v. Stewart (230 A.D.2d 116, 1997)

OPINION OF THE COURT

Per Curiam.

If a fraud was perpetrated on a court in obtaining a judgment, there is authority for the vacatur of such a judgment (Matter of Lockett v Juviler, 65 NY2d 182, 186). In fact, CPL 440.10 (1) and CPLR 5015 (a) (3) specifically provide for such a remedy. That is not the case before us. We deal in this matter with a motion pursuant to CPL 210.40 to dismiss an indictment in "furtherance of justice.”

Defendant, an attorney, was defense counsel for Dominick Maldonado, one of six persons indicted in a drug conspiracy case. One of the other persons indicted, Susan Chang, who has since died of cancer, cooperated with the prosecution and testified before the Grand Jury that the head of the drug ring had provided lawyers for all the defendants, and that attorney Stewart, the defendant in the instant case, was the drug head’s lawyer as well as Maldonado’s; the witness also testified that her defense counsel had warned her not to cooperate with the prosecution because the head of the ring would have her killed and that the head of the ring would find out about the cooperation through attorney Stewart, because all the lawyers "go back to Lynne Stewart.”

Shortly after the above testimony the prosecution subpoenaed Stewart and two other defense attorneys. Compliance with the subpoenas would have given the lawyers full transactional immunity (CPL 190.40). Their motion to quash was denied (Matter of Grand Jury Subpoena of Stewart, 144 Misc 2d 1012). This Court modified only by staying the subpoenas until the attorneys’ representation of the defendants should be terminated, noting that the information sought was neither privileged nor directly incriminatory of their clients but that staying the enforcement of the subpoenas until appellants’ representations of the defendants were terminated would ameliorate the "inevitable 'chilling effect’ ” of the subpoenas (Matter of Grand Jury Subpoena of Stewart, 156 AD2d 294).

Maldonado told the court that he wanted a new lawyer but that he was afraid to discharge Stewart because the person who paid her fee was "too smart” and his life and his family’s lives would be in danger. The court then appointed another lawyer (shadow counsel) to represent Maldonado in his attempted cooperation. When Stewart became aware of the arrangement, she asked to be relieved. Her application was granted.

The prosecution once again subpoenaed Stewart. She appeared but responded to every question by refusing to answer, on constitutional grounds and on the right of any client of hers, past or present, to absolutely privileged communications with his attorney. Stewart was indicted for criminal contempt in the first degree (Penal Law § 215.51), a class E felony, and moved for an order dismissing the indictment in furtherance of justice (CPL 210.40). Her motion was granted (People v Stewart, 158 Misc 2d 776 [portions of opinion omitted]).

Defendant had first moved to dismiss the indictment on the ground that legally sufficient evidence to establish the offense charged had not been presented. The motion court found, however, that legally sufficient evidence had been presented to the Grand Jury. The motion court found further that neither of the legal grounds advanced by defendant — that the prosecutor had improperly charged Penal Law contempt rather than Judiciary Law contempt and that the same Grand Jury that had indicted defendant’s client had been improperly used to indict defendant — would independently justify dismissal of the indictment. The court, however, expressly set out to examine and discuss the issues raised by those legal grounds in its examination and consideration of defendant’s CPL 210.40 (1) motion.

The motion court, granting the legality of the prosecutor’s choice of criminal rather than Judiciary Law contempt, nevertheless felt constrained to ask why the prosecutor chose criminal contempt and whether such choice was just and fair. It then concluded that the prosecutor’s choice of criminal contempt all but precluded a review of the appropriateness of Ms. Stewart’s question-by-question refusals. But the appropriateness of her refusals is the very question of her guilt or innocence which should be resolved by a trial. CPL 210.40 (1) and its criteria (paras [a]-|j]) rather "present, as a matter of legislative policy, a broad range of considerations basically unrelated to guilt or innocence” (Preiser, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11 A, CPL 210.40, at 703 [emphasis supplied]).

The motion court conceded that the offense charged is serious and, evidently, that the extent of the harm done might be serious; but it noted, citing the prosecutor’s failure to obtain such evidence by other routes, that defendant "can hardly be held totally accountable for the prosecution’s inability to obtain evidence against 'Lincoln’ (the alleged head of the narcotics ring).” (158 Mise 2d, supra, at 782.) The failure to obtain such evidence by other routes, however, made it all the more important that the lone remaining chance or few remaining chances to uncover a drug conspiracy not be thwarted by an improper refusal to testify. And the propriety or impropriety of the refusal should be left for trial, unless there is some "compelling factor” consistent with paragraphs (a) through (j) of CPL 210.40 (1) requiring dismissal (see, CPL 210.40 [1]).

The dissent argues that if this Court had been aware that defendant was no longer Maldonado’s counsel, its decision on the motion to quash the indictment would have been different and that defendant was "deprived of her strongest arguments in this Court.” But, since three members of the panel who elected to stay Ms. Stewart’s appearance before the Grand Jury until her representation was terminated nevertheless concluded that "the subpoenas should not be quashed”, and the two dissenters would also have denied the motion to quash the subpoena and permitted "immediate testimony” before the Grand Jury (Matter of Grand Jury Subpoena of Stewart, supra, at 294), the reasonable conclusion is that the Court would have unanimously directed defendant’s immediate testimony before the Grand Jury had it known she was not Maldonado’s counsel at that time.

In any event, as noted, we are dealing only with the issue of whether the motion court abused its discretion when it granted defendant’s motion to dismiss the indictment in furtherance of justice pursuant to CPL 210.40.

The dissent refers to the "unsettled state of the law” concerning the issuance of Grand Jury subpoenas to defense counsel. However, the Court of Appeals has found that fee arrangements between an attorney and his or her former client and between an attorney and a third party who may have retained the attorney to appear for such client are not protected by the attorney-client privilege (Matter of Priest v Hennessy, 51 NY2d 62). "The name of the person retaining an attorney for another and the amount of the retainer paid are quite simply not the confidences which the privilege was intended to protect” (supra, at 70). Even if they were, moreover, public policy considerations might in some circumstances still require disclosure (supra, at 70-71; Matter of Jacqueline F., 47 NY2d 215). This is not "unsettled” law.

CPL 210.40 (1) provides that an indictment or a count thereof may be dismissed in furtherance of justice when "such dismissal is required as a matter of judicial discretion by the existence of some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant upon such indictment or count would constitute or result in injustice.”

In determining whether dismissal is appropriate, 10 factors, lettered (a) to (j) in the statute, must be considered. The first three, (a) to (c), clearly weigh against defendant: (a) the seriousness of the offense and the circumstances in which it was committed, after litigation with respect to her duty to testify and after her client, in terror of the head of the ring, had accepted other counsel to handle his cooperation, are clear and the motion court concedes the seriousness of the offense; (b) the extent of harm caused by it is obvious; no charges were brought against the head of the ring, the only evidence against him before the Grand Jury coming from his accomplices (see, CPL 60.22; People v Breland, 83 NY2d 286); it seems that the motion court concedes the extent of the harm caused but concludes that defendant is not "totally accountable” (158 Mise 2d, supra, at 782) for it; and (c) the evidence of her guilt of violating Penal Law § 215.51 is strong, and the motion court concedes that it is strong. Factors (e) to (h) also weigh against defendant: (e) there has been no misconduct by law enforcement personnel as the motion court concedes; (f) the purpose of the indictment and of the prescribed sentence was to get defendant to testify, though its success could not be guaranteed; dismissal would defeat that purpose; the argument that a milder sanction might have been more effective is unconvincing; (g) the impact of dismissal of the charge against a lawyer on the ground that disbarment is too harsh a penalty, a ground not available to a layperson, could only injure public confidence in the criminal justice system; and (h) the impact of the dismissal upon the safety of the community would be adverse in that it would serve to perpetuate similar layerings of knowledge in similar situations.

Factor (d) is "the history, character and condition of the defendant.” There is nothing in her history, character, or condition which would militate for or against the dismissal of the indictment. Factor (i), the attitude of the complainant, and factor (j), any indication that a judgment of conviction would serve no purpose, would seem not to come into play.

All in all, examining and considering the factors set out in CPL 210.40 (1), as we must, there has been no indication of "the existence of some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant * * * would constitute or result in injustice” (CPL 210.40 [1]; emphasis supplied). What has been clearly demonstrated is that the offense with which defendant is charged is a serious and harmful one and that the criteria prescribed in CPL 210.40 (1) indicate that dismissal in furtherance of justice is inappropriate.

The argument that the People’s seeking a contempt indictment from the same Grand Jury before which Stewart had refused to testify was improper is without merit. Another Grand Jury would have had access to a transcript showing what this Grand Jury, instead, had observed. Either way, the essential fact, Stewart’s refusal to testify, would have been shown (see, Langella v Commissioner of Corrections, State of N. Y., 413 F Supp 1214, 1219 [SD NY], affd 545 F2d 818 [2d Cir], cert denied 430 US 983).

If she is convicted of the felony of criminal contempt, defendant will be automatically disbarred (Judiciary Law § 90 [4] [a]). This is a consequence she understood when she refused to testify, a consequence she was reminded of by the prosecutor. Laypersons who commit felonies suffer the consequences. Lawyers who commit felonies should not be allowed to avoid the consequences, even though they include disbarment. This Court has recognized that there may be unusual circumstances under which a mandated sentence may be so disproportionate to culpability as to support dismissal pursuant to CPL 210.40 (see, People v Cruz, 114 AD2d 769, 771). Mandated collateral consequences of a conviction could, it would seem, similarly justify dismissal. The focus on the administrative consequences to defendant in the instant case, however, must not be allowed to obscure the interest of the State (see, People v Naik, 139 AD2d 535). In People v Cruz (supra), this Court found that the conclusion was almost inescapable that defendant was a habitual criminal and that dismissal of any count to avoid the prescribed sentence was improper. In the instant case, defendant insists, in effect, that Matter of Priest v Hennessy (supra) does not apply to her; the consequences of her silence preclude the dismissal of the indictment.

The memorandum of the New York State Association of Criminal Defense Lawyers, appearing as amicus curiae, stresses the argument that defendant’s course of action was proper. We are concerned, however, with CPL 210.40 (1) and criteria (a) through (j) therein, which, as has been observed, "present, as a matter of legislative policy, a broad range of considerations basically unrelated to guilt or innocence” (Preiser, op. cit.; emphasis supplied). Only factor (c) refers to the evidence of guilt. Since there is no showing that this is the " 'rare’ ” and " 'unusual’ ” case crying out for " 'fundamental justice beyond the confines of conventional considerations [citations omitted]’ ” (People v Insignares, 109 AD2d 221, 234, lv denied 65 NY2d 928), defendant’s guilt or innocence should be decided after a trial. There is an incongruity in arguing the question of guilt or innocence at such length in an attempt to avoid the process which determines guilt or innocence. "Before the function of the jury, the Judge and the very trial itself is supplanted, an overriding moral issue must be present so as to utilize this extraordinary procedure requested herein” (People v Stern, 83 Misc 2d 935, 940). The overriding moral issue here supports the position of the People.

What defendant seeks here is analogous to what was sought by the defendant in People v Stein (85 Misc 2d 1081 [Sup Ct, Suffolk County]) 21 years ago. Stein, a student at the State University at Stony Brook, had received and opened a package mailed from Nepal and under surveillance since it entered the country. It contained marihuana and opium. Testifying that he had not ordered the package, was unaware of its contents, never intended to exercise dominion and control over it, and had opened it only out of curiosity, he moved for dismissal in the interests of justice. The court observed that Stein might indeed be able to establish his innocence but that he had not met the standards of People v Clayton (41 AD2d 204) and that "[t]he defendant really seeks summary judgment in this criminal matter through the vehicle of a motion for dismissal in the interests of justice. No such remedy is available to him.” (People v Stein, supra, at 1082-1083.) Similarly, no "summary judgment” dismissing the indictment is available to defendant in the instant case, whether or not she may be able to avoid conviction otherwise. Indeed, it would seem that the dissent was dictated by an attempt to secure summary judgment and to "deny to the People the opportunity to offer their proof’ (supra, at 1082).

The motion court, in referring to the criteria of CPL 210.40 (1), relied on (d), the history and character of the defendant; on (f), the purpose and effect, including the catastrophic collateral effect of disbarment, of imposing the authorized sentence on defendant; and on (j)> the utilization of the same Grand Jury, as indicating that a judgment of conviction would serve no useful purpose. The State’s purpose in imposing the authorized sentence, however, is to induce people not to refuse to answer questions. As indicated above, the State has a legitimate purpose in doing so. The motion court’s conclusion that the utilization of the same Grand Jury indicates that a judgment of conviction would serve no useful purpose pursuant to factor (j) is without justification or logic. Thus, all that is left not favoring reversal here is criterion (d), her history, character, and condition. That factor does not of itself satisfy the requirement of CPL 210.40 (1) for "some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant * * * would constitute or result in injustice” (compare, People v Colon, 86 NY2d 861).

The dissent recognizes that the court’s power to dismiss in furtherance of justice is "now exercised pursuant to statute” but emphasizes that that power has long been recognized by the common law and fails to examine the criteria of CPL 210.40 (1), contrary to the dictates of People v Colon (supra). Instead, it goes on to recite factual accounts which have little if anything to do with the statutory scheme; to challenge the discretion of the prosecutor; to trace the appellate history of earlier motions in the case even if only tenuously related; to argue the inherent illegality of the procedure of using "shadow counsel” and the impropriety of the subpoena itself; and to disparage Maldonado’s fears.

Though highly critical of the prosecution and the Supreme Court and expressing concern about Maldonado’s right to counsel, the dissent offers no alternative to the concealment of the new counsel for the purpose of allaying Maldonado’s expressed fears of retribution from Lincoln and preventing such retribution. The Grand Jury subpoena, though seeking testimony and documentation with respect to the payment of defendant’s fees for defending Maldonado, was clearly aimed at Lincoln and not Maldonado. The dissent, nevertheless, in its condemnation of secret counsel, would hinder the ability of the People to protect possible witnesses and to investigate and expose possibly criminal participation by attorneys in furtherance of the drug trade.

In any event, this issue is not one properly before us. If defendant is aggrieved by the "manner” in which the prior appeal was decided, she can move to vacate any order or judgment obtained by fraud or misrepresentation. "Courts traditionally have inherent power to vacate orders and judgments obtained by fraud or misrepresentation. In this State, that power has been exercised in civil cases (Furman v Furman, 153 NY 309; Matter of Holden, 271 NY 212) and criminal cases (Matter of Lyons v Goldstein, 290 NY 19)” (Matter of Lockett v Juviler, 65 NY2d 182, 186, supra). Defendant can raise the issue in her trial and if not vindicated by a trier of the facts can move pursuant to CPL 440.10 to vacate that judgment. In fact, accepting the facts as given by the dissent as true, there appears to be no reason defendant cannot move pursuant to that section with respect to the prior judgment affirmed by us. Thus, CPL 440.10 (1) reads, in pertinent part: "At any time after the entry of a judgment, the court in which it was entered may, upon motion of the defendant, vacate such judgment upon the ground that * * * (b) The judgment was procured by duress, misrepresentation or fraud on the part of the court or a prosecutor or a person acting for or in behalf of a court or a prosecutor”.

Likewise, CPLR 5015 (a) (3) provides that: "The court which rendered a judgment or order may relieve a party from it upon such terms as may be just * * * upon the ground of * * * fraud, misrepresentation, or other misconduct of an adverse party”.

Had defendant moved in such a manner, the People would have the opportunity to be heard, especially the allegations dehors the record relied upon by the dissent, and to contest its unilateral fact-finding. The dissent accuses us of dispensing with the consideration of factor (e) in CPL 210.40 (1), "any exceptionally serious misconduct of law enforcement personnel in the * * * prosecution of the defendant.” The dissent attacks the use of shadow counsel, the ethics of the prosecution and the court in obtaining and using such counsel. However, the dissent conveniently does not cite to one case which makes the use of "shadow counsel” illegal or a breach of ethics. We will not, as does the dissent, so cavalierly castigate the prosecutor and the court for attempting to discover the inner workings of a drug ring and protect an informer. We will not rely solely upon speculation and surmise, outside the record, to issue a holding. Once again, we reiterate, this is not the function of the statute now before us, which allows dismissals in furtherance of justice, and we refer to the cases cited above where the Court of Appeals has reversed the application of this statute to cases which did not fit within the statutory framework of CPL 210.40. This is such a case.

While we will not respond in kind to the dissents addendum, we must note that, in over 50 pages, the dissent charges this Bench with cooperating in the alleged "derogation” of ethics engaged in by the narcotics prosecutor, and accuses us of using the criteria of CPL 210.40 as a "blind” to screen from view aspects of the record which are "highly disquieting.”

Judge Cardozo observed many years ago that "A Judge is not a knight-errant, roaming at will in pursuit of his (or her) own ideal of beauty or of goodness” (Cardozo, The Nature of the Judicial Process, reprinted in Selected Writings of Benjamin Nathan Cardozo, at 164 [Hall ed 1947]). The dissent, however, instead of focusing and dealing with the issue before us, takes up and deals with other issues, fascinating, no doubt, but not before us.

Finally, our disagreement with the motion court is only with respect to its application of the statutory criteria for dismissal of the indictment in the furtherance of justice. That we disagree with the motion court in this regard in no way affects our respect for its courage, integrity and intellectual prowess. In fact, the dissent would have done well to have simply relied upon the motion court’s opinion.

Accordingly, the order of the Supreme Court, New York County (Richard T. Andrias, J.), entered on or about May 18, 1993, which granted defendant’s motion to dismiss the indictment in furtherance of justice, should be reversed, on the law and on the facts, the motion denied, and the indictment reinstated.

Murphy, P. J.

(dissenting). It is ordinarily the prerogative of the prosecutor to decide whether to prosecute an individual for crime, the only general limitation upon that prerogative being the Grand Jury’s power to refuse to vote an indictment when the evidence before it is either legally insufficient to support the proposed charge, or, in the Grand Jury’s view, not reasonably supportive of the accusation the prosecutor would make (see, CPL 190.75). The subject prosecutorial prerogative, however, while undeniably broad, is not otherwise unlimited. Indeed, the law recognizes that there are exceptional cases in which prosecution, even though proper in a technical sense, does not advance the cause of justice and, in such cases, the court is vested with equitable power, long recognized by the common law but now exercised pursuant to statute, authorizing it to dismiss an indictment "in furtherance of justice” (CPL 210.40). Of course, there is a heavy presumption that justice will, in fact, be served by the diligent prosecution of a duly indicted defendant. Accordingly, a contrary conclusion may be reached by a court only upon a showing of some compelling circumstance by reason of which a case may be said to "cr[y] out for fundamental justice beyond the confines of conventional considerations of 'legal or factual merits of the charge or even on the guilt or innocence of the defendant’ ” (People v Beige, 41 NY2d 60, 62-63 [Fuchsberg, J., concurring]; People v Perez, 156 AD2d 7, lv denied 76 NY2d 794; People v Howard, 151 AD2d 253, lv denied 74 NY2d 811; People v Diggs, 125 AD2d 189; People v Insignares, 109 AD2d 221, lv denied 65 NY2d 928). This is such a case.

The very unusual circumstances out of which the within prosecution and instant motion for its dismissal arise date back to 1989. On July fifth of that year, the defendant, Ms. Lynne Stewart, an attorney, was served with a Grand Jury subpoena requiring her to testify and produce documentation respecting the source of her fees for the representation of one Dominick Maldonado. At the time she was subpoenaed, Ms. Stewart had been representing Maldonado for some four months; she was defending him against charges contained in a then-32-count indictment alleging that Maldonado and five codefendants had committed various narcotics-related offenses during and in furtherance of an extensive conspiracy to market heroin on the lower east side of Manhattan. The Grand Jury that subpoenaed Ms. Stewart was the same Grand Jury that had indicted her client, Maldonado, and the subpoena was issued purportedly to widen the scope of that same Grand Jury’s still ongoing investigation into the conspiracy of which Maldonado had allegedly been part. Indeed, quite apart from its issuance of the subpoena to Ms. Stewart, the continuing and increasingly broad investigative focus of the Grand Jury upon the lower east side drug conspiracy was made evident by the Grand Jury’s return on July 19, 1989 of a superseding indictment adding five defendants and 20 counts to those already covered by the original 32-count accusatory instrument. Among the newly indicted defendants was one Luis Torres, alleged to be second in command of the narcotics conspiracy. Torres had been arrested in early June 1989, at which time numerous documents bearing upon the operations of the drug ring had also been seized. Since his arrest, Torres had been cooperating with the prosecution, a circumstance which the narcotics prosecutor, seeking leverage in plea negotiations, readily divulged to Ms. Stewart and counsel for the other defendants; although, prior to Torres’ arrest and cooperation, the prosecution had indicated a willingness to agree to relatively favorable dispositions in exchange for cooperation, the prosecutor’s position now, subsequent to Torres’ much-vaunted cooperation, was that the defendants who had not yet cooperated would either plead to the top count in the indictment and receive minimum prison terms of 15 years or go to trial and risk the consequences.

This hardening of the narcotics prosecutor’s bargaining position occurred even though the conspiracy’s alleged leader, Robert Cruz, also known as “Lincoln”, remained unapprehended and unindicted; the prosecutor apparently felt that the remaining evidence necessary to indict Cruz could and would be obtained not from Cruz’s indicted coconspirators but rather from their attorneys, and it was for the purpose of eliciting such evidence that Ms. Stewart, along with cocounsel David Weiss and Christopher Lynn, was subpoenaed in early July 1989. Indeed, the theory of relevance underlying the subpoenas’ demands for fee information was that such information, if furnished by defense counsel, could provide the nonaccomplice corroboration necessary (see, CPL 60.22, 190.30) to indict Cruz for his role in the drug conspiracy; by the time it subpoenaed Ms. Stewart and cocounsel, the Grand Jury had heard testimony from one of Maldonado’s codefendants, Susan Chang, to the effect that Cruz was the leader of the drug ring and that it had been understood that Cruz would provide counsel to his lieutenants if they were apprehended for offenses committed in furtherance of the conspiracy. The narcotics prosecutor believed, in reliance on Chang’s testimony, that the clients of the subpoenaed attorneys were beneficiaries of this allegedly conspiratorial understanding with Cruz, and now sought to elicit confirmation of that state of affairs from the attorneys themselves.

Ms. Stewart and the other subpoenaed attorneys moved to quash the subpoenas. In this connection, they urged that the subpoenas were, in their issuance and the information they sought to elicit, violative of the right to the assistance of counsel as guaranteed by Federal and State Constitutions and of the attorney-client privilege. It was also alleged that service of the subpoenas upon defense counsel in the above-described circumstances constituted an abuse of process. In a lengthy opinion, Justice Snyder, who was also presiding over the pretrial proceedings in connection with the Maldonado indictment, denied the motion. She found the cases, both Federal and State, delimiting the scope of the attorney-client privilege decisively contrary to defense counsel’s claim that the subpoenaed fee information fell within the privilege. Somewhat more troublesome to Justice Snyder, however, if ultimately no more meritorious, was that branch of the motion predicated upon the subpoenas’ alleged infringement on the right to counsel. She stated:

"It is clear that whenever an attorney is compelled to testify in the Grand Jury, the attorney may well be placed in the position of becoming a witness against the client or risking contempt. Under these circumstances, it would be ludicrous for any court to ignore the potential 'chilling effect’ that a Grand Jury subpoena to counsel has on the attorney-client relationship.

"Given the historical importance of the Sixth Amendment right to counsel, as preserved and maintained by our Court of Appeals and as applicable in the postindictment situation here, it is necessary to balance the rights and powers of the Grand Jury with the defendants’ right to counsel of their choice.” (Matter of Grand Jury Subpoena of Stewart, 144 Misc 2d 1012, 1023.)

To accomplish this balancing, Justice Snyder, noting the absence of appellate guidance as to precisely how the competing interests were to be weighed, prescribed her own tripartite test: for a subpoena such as the one served upon Ms. Stewart to pass constitutional muster, the subpoenaed evidence had (1) to be reasonably believed relevant to the investigation of the Grand Jury; (2) to be sought in good faith; and (3) to be unobtainable from a "reasonable, legally sufficient alternative source” (supra, at 1023). Concluding that these criteria had been satisfied, Justice Snyder ordered Ms. Stewart’s appearance before the Grand Jury and her production of the subpoenaed documents.

The denial of the motion to quash was thereafter appealed to this Court, which issued its ruling in the matter on December 21, 1989 (156 AD2d 294). Holding, as had the motion court, that the subpoenaed evidence was not privileged, and-observing that the fee information sought by the Grand Jury was not "directly incriminatory of appellants’ clients” (supra, at 294), the Court unanimously concluded that the subpoenas requiring Ms. Stewart’s evidence and that of her cocounsel ought not to be quashed. The Bench, however, divided as to the timing of defense counsels’ compelled Grand Jury appearances. Noting the "inevitable 'chilling effect’ that the very summoning of appellants before the Grand Jury has on their relationships with their clients [citations omitted]”, the three Justice majority directed that enforcement of the subpoenas be stayed "until appellants’ representations of defendants in the proceeding bearing indictment number 8329/89 are terminated” (supra, at 294). Dissenting from this part of the ruling, Justices Smith and Rubin stressed that "[t]he allegation that the Grand Jury appearance will have a chilling effect is conclusory and without adequate evidentiary support, and under the facts and circumstances of this proceeding must be rejected” (supra, at 296).

On January 29, 1990, the People moved in this Court for leave to appeal from that portion of its order staying enforcement of the Grand Jury subpoenas. Upon the motion, the People complained that "grand jury proceedings against the unindicted conspirators have now been delayed by this appeal and the motions underlying it since July, 1989. And there is no apparent prospect of a speedy resolution of the proceedings against the indicted defendants.” The People’s motion was granted by order entered February 20, 1990 (158 AD2d 1010).

The subpoena litigation proceeded with an air of relative normalcy for the ensuing four months; a briefing and argument schedule was set and jurisdictional statements were filed in the Court of Appeals. In June 1990, however, the litigation abruptly terminated following the compelled disclosure of the startling and, as it turned out, long-pending circumstance, that two of the subpoenaed attorneys, Ms. Stewart and Mr. David Weiss (the latter of whom was the attorney of record for Susan Chang), had, unbeknownst to them, been effectively removed and replaced as counsel to their indicted clients.

It seems that Ms. Chang, who had been cooperating with the prosecution since relatively early in the case and whose cooperation, in addition to the above-described Grand Jury testimony, included her utilization as a registered informant, became ill with terminal cancer in the spring of 1990. Believing that Ms. Chang would not survive until the trial, the prosecution sought to preserve her testimony. A conditional examination of Chang was, accordingly, scheduled and, in preparation for Chang’s cross-examination, the defendants sought disclosure of all Rosario material. The prosecution responded by moving to limit the scope of its otherwise mandated disclosure obligation, but Justice Andrias, to whom the proceedings in connection with the conditional examination had been referred, denied the motion and directed that the mandated disclosure be made without exception. The materials thus made available to the defense revealed not only that Chang had been cooperating with the prosecution virtually since its inception, but that her nominal counsel of record, David Weiss, had long since been displaced by "shadow counsel”, brought into the case by Justice Snyder precisely to enable Ms. Chang to cooperate without Mr. Weiss, or anyone to whom he may have been beholden, knowing about it. While it was still possible to maintain, this judicially sanctioned and enacted deception proved an elaborate and quite literally duplicitous undertaking. Chang, for example, was led through two plea allocutions — an open mock allocution in which Mr. Weiss acted as Chang’s counsel and a secret, true allocution in which the role of Chang’s attorney was filled by "shadow counsel”. She was similarly "sentenced” and "resentenced”. Nor, even in its earliest stages, did the parallel subpoena litigation remain immune from such dissimulation; Justice Snyder decided the motion to quash as if Weiss were still Chang’s attorney when, in fact, as both the court and narcotics prosecutor knew, Weiss had already been replaced by "shadow counsel”.

As for Ms. Stewart’s client, Maldonado, the materials Justice Andrias ordered turned over to the defense showed that he, too, had been cooperating with the prosecution and, like Chang, had been appointed "shadow counsel”.

It appears that Maldonado telephoned an Assistant District Attorney, Eric Herschman, on November 9, 1989. He stated in essence that he wanted to talk to Herschman but did not want Ms. Stewart to know that he was doing so. Herschman replied that Maldonado would need to have a lawyer present in order to communicate with the prosecution and suggested that Maldonado explain to Justice Snyder why he did not want Ms. Stewart to represent him: "What has to be done though is you have to explain it to the judge, and then she’ll get you a lawyer. The court will appoint one for you, but it will be between you and her, alright?” Maldonado agreed to call Herschman back with his answer and, on November 13, 1989, did so, indicating that he would like to see the Judge.

Maldonado was brought before Justice Snyder on November 16, 1989. Attending, in addition to the Judge and Maldonado, were Herschman, a criminal defense attorney named Harold Schwartz, whose presence had been requested by Justice Snyder to facilitate Maldonado’s anticipated cooperation, several law enforcement officers and the Grand Jury stenographer. Maldonado indicated that he wished to cooperate with the prosecution without his lawyer knowing about it, and, as matters progressed, it became evident that Maldonado was, in effect, asking that he be allowed to cooperate with the assistance of a court-appointed lawyer while affecting to continue his representational arrangement with Ms. Stewart, the purpose of the pretense being to keep Ms. Stewart in the dark as to the fact of his cooperation. Recognizing the nature of Maldonado’s request, the court explained its position: "You can’t have another lawyer and keep Miss Stewart unless there is some reason, some overwhelming reason, you can’t fire Miss Stewart. That is what — why we are here. * * * That’s the impression you have given the District Attorney. That is why I am here, is that you can’t tell Miss Stewart she is fired because you were afraid to tell her and you wanted me to appoint another attorney to represent you without her knowing it so you can speak to the District Attorney.” Notwithstanding the invitation to do so, however, Maldonado either would not or could not articulate any reason, "overwhelming” or otherwise, to support his most unusual request. The meeting then concluded with the court setting forth the terms of its future involvement: "The only reason I will speak to you again is if you have decided that you don’t want your present attorney, Miss Stewart, and you want to cooperate, and you want me to assign one for you, or you can’t fire your present lawyer and you are willing to put all the reasons on the record, and then I’ll assign someone to you or Mr. Schwartz to represent you. This is something I do not like and would only do if you have convinced me that you are in fear for your life if she knows about it.”

Only five days passed before Maldonado decided that he would like to speak to Justice Snyder again. He, accordingly, telephoned Herschman on November 21, 1989, and asked that Herschman arrange a second meeting with her. Herschman agreed to try but emphasized that Maldonado would have to be prepared to explain "everything”. Maldonado then, undeterred, if not encouraged, by Herschman, proceeded to explain "everything” directly to the prosecutor:

"dominick: O.K., but, uh, listen, another thing, ah, it’s see the reason what I want is to for her to stay on the case is because this guy paid her.

"a.d.a. herschman: Cause what?

"dominick: The, the guy * * *

"a.d.a. herschman: Right.

"dominick: Paid her.

"a.d.a. herschman: I didn’t hear what you said.

"dominick: You know, for ah, to be my lawyer?

"a.d.a. herschman: You want her to be your lawyer?

"dominick: No, see, you don’t listen to what I’m saying. You see this other guy paid her * * *.

"a.d.a. herschman: Right.

"dominick: * * * to be my lawyer.

"a.d.a. herschman: The other guy paid her to be your lawyer?

"dominick: Yeah. So that’s the other thing, you know that, that, that if she continued the case, you understand what I’m saying? Can she continue the case, cause like that, he won’t get no bad ideas.”

Having thus rehearsed his explanation, Maldonado, on November 27, 1989, was returned to Justice Snyder’s chambers where, in the presence of the same persons who had attended the earlier meeting, he entered into the following exchange with the court:

"mr. maldonado: Your Honor, the reason I don’t want to fire Miss Stewart, she was paid by this — another person and this person is too smart, and he will want to know what I am firing her for.

"the court: And?

"mr. maldonado: That’s the reason why I spoke to the DA. That is — I wouldn’t be able to fire the Lawyer for this matter.

"the court: You said he would be too smart, and he would want to know why you wanted another lawyer. Would that result in some problem for you?

"mr. maldonado: Yes.

"the court: What? I have to hear. You can’t assume that I understand what is on your mind. I want you to spell it out for me, why that would be a problem.

"mr. maldonado: Well, the problem would be that I will be — my life will be in danger and so is my family.

"the court: Your family’s life too?

"mr. maldonado: Yes.

"the court: All right. In that case, Mr. Schwartz, I want you to represent Mr. Maldonado for the purpose of this attempted cooperation.”

Justice Snyder then indicated that she realized she was putting Mr. Schwartz in a difficult position but felt that she was acting in accordance with her "ethical responsibility”. In the ensuing colloquy, Mr. Schwartz, although agreeing to do as he was bid, politely questioned the propriety, necessity and efficacy of the representation he had been asked to provide:

"mr. schwartz: Obviously, I’ll do what you instruct me to do. I only have one problem. What the defendant is saying is not that he doesn’t trust Miss Stewart, but that he feels that the person who paid Miss Stewart will be the wiser if, in fact, he discharges Miss Stewart. And in essence what I’m doing is representing him for this particular procedure, but Miss Stewart is his lawyer and is not going to know about that.. And that’s what I have difficulty with.

"the court: Mr. Schwartz, I understand what you are saying. It puts me in the same position. And I have no desire to be participating in a procedure which the attorney does not know about. I consider it distasteful. And I have examined all ethical standards[] that I can find and my conclusion is that, as the Judge, when the defendant makes the kind of statement that this defendant just did about worrying about his life and that of his family’s life being in danger which does involve Miss Stewart knowing if he were to cooperate then I feel I have no choice. My ethical responsibility is to appoint you, and I understand it’s distasteful. I don’t see that I have any other choice.”

Then, to clarify for Mr. Schwartz what she understood to be the nature of Ms. Stewart’s involvement, Justice Snyder again questioned Maldonado:

"the court: I have to assume in that statement that you are saying, Mr. Maldonado, that this other person would find out— the person who paid Miss Stewart, as you just said — would find out that you had fired Miss Stewart. That’s what you just told me.

"mr. maldonado: Right.

"the court: And I assume — correct me if I am wrong — that you were saying that Miss Stewart would be telling that person.

"mr. maldonado: Well not exactly. What I’m trying to say — he is too smart. He will want to know why I am firing her.”

At the conclusion of this inquiry, during which Maldonado stopped conspicuously short of stating that he believed Ms. Stewart would advise his "benefactor” of his decision to cooperate, the court turned to Mr. Schwartz and explained:

"the court: The problem, Mr. Schwartz, is no one at this point is making any judgment about anybody. Its just what Mr. Maldonado is saying is that this person would find out via having paid Miss Stewart because he would want to know what was happening and would learn that Mr. Maldonado is no longer being represented by Miss Stewart if he fired her and that, Mr. Maldonado, is what you told me — you felt you would place your life in danger. Am I right?

"mr. maldonado: Yes.”

Mr. Schwartz, then, apparently unaware of the lengths to which the court was prepared to go to preserve the secrecy of the representational change, made the following cogent observation: "mr. schwartz: Of course, he [Maldonado’s benefactor] could find out by just seeing another attorney appear for him or by other defendants. I don’t think that he is saying Miss Stewart would be the one to tell this person — I mean the person — whoever he is we are talking about. I don’t even know the person he is talking about. The person he indicates paid for his counsel would find out through any source, possibly a co-defendant, somebody who is in court and seeing Miss Stewart is not defending him.” The point, of course, made by Mr. Schwartz was that, based upon what Maldonado had said, both on the record and in conference with him privately, Ms. Stewart was not the problem — Maldonado apparently did not distrust her any more or less than anyone else. Moreover, to the extent that Maldonado and the court apparently shared the belief that replacing Ms. Stewart would reduce the danger of cooperating, they were doubtless mistaken since, regardless of the manner in which the replacement was accomplished, it could not be kept secret indefinitely. His misgivings notwithstanding, however, Mr. Schwartz, after an off-the-record discussion in the course of which he was presumably advised by the narcotics prosecutor and the court of their joint design for concealing Maldonado’s cooperation, did as the court wished and counseled Maldonado respecting his impending cooperation to the extent of advising him that he, Schwartz, took no position as to whether Maldonado should or should not cooperate and that no promises were being made in exchange for his cooperation. Thus advised, Maldonado went ahead with his decision to cooperate and was debriefed, without Schwartz’s further assistance, by the Assistant District Attorney. He apparently had little of value to tell the prosecutor, for in December 1990, upon his conviction, after trial, of numerous narcotics-related crimes, he was sentenced to a prison term of 100 years to life.

When the above-recounted events of November 1989 were finally disclosed to Ms. Stewart in June 1990, some seven months after the fact, she did no more than acknowledge the abiding reality by moving to be officially relieved as Dominick Maldonado’s counsel. The motion was, of course, granted.

With the disclosure and clarification of Ms. Stewart’s true representational status, it became apparent that the People’s appeal to the Court of Appeals had been mooted; the stay upon Ms. Stewart’s Grand Jury testimony, conditioned, as it had been by this Court, on the existence of an underlying representational relationship with one of the indictees, was no longer in effect and Ms. Stewart’s testimony could now proceed without further appellate litigation over the stay’s validity. Accordingly, the People moved to withdraw their appeal, and, following the grant of the motion in November 1990 (76 NY2d 948), arranged for Ms. Stewart to appear before the Grand Jury on January 18, 1991. Ms. Stewart appeared at the appointed time and to each question posed by the prosecutor responded: "Mr. [Prosecutor], with all due respect for the grand jury and its function, I refuse to answer based upon my rights under the United States Constitution and the New York Constitution. I further believe that I must assert the right of any client of mine, past and present, to absolutely privileged communications with his or her attorney. I further believe that this subpoena constitutes an abuse of the grand jury’s legal function.”

The prosecutor then instructed Ms. Stewart that she was not a target of the Grand Jury’s investigation and that she would, in any case, receive immunity from prosecution for any transactions to which she testified. He also advised her, however, that she risked conviction for contempt if she refused to testify and, in that connection, read her the definition of criminal contempt in the first degree (Penal Law § 215.51). Thus instructed, Ms. Stewart returned to the Grand Jury room where she again refused to answer, responding to each question, as she had earlier, by reading the aforecited statement. Ms. Stewart was thereupon brought before the ubiquitous Justice Snyder who, after hearing what had transpired, expressed the view that "this entire subpoena matter has been fully adjudicated” and, given what she took to be the settled nature of Ms. Stewart’s testimonial obligation, ordered her to answer. Justice Snyder then advised the parties pointedly of her continuing availability:

"the court: I will remain in session. * * *

"It seems to me that the consequences of failing to obey a lawful order of this Court should be obvious to you [Ms. Stewart], and it would be with great reluctance that I would consider imposing such consequences. But you may put me in a position where I have no choice.”

On returning to the presence of the Grand Jury, Ms. Stewart again refused to answer, as she had previously. She was then simply excused; despite its much vaunted availability, further judicial intervention was not sought that day by the prosecutor. Indeed, it was not until nearly four months later that the consequences of Ms. Stewart’s testimonial refusal were visited upon her; on April 9, 1991, Ms. Stewart was advised that she had been indicted for criminal contempt in the first degree, a felony. She was arraigned on the one-count indictment on April 17, 1991. The indictment was returned by the same Grand Jury before which Ms. Stewart had refused to testify — the Grand Jury which over the course of the preceding more than two years had heard all the presented evidence of the lower east side drug conspiracy. Ms. Stewart made the within motion to dismiss the indictment, pursuant to CPL 210.40, "in furtherance of justice”, in May 1992.

In his decision of May 1993, granting the motion and directing dismissal of the indictment (158 Misc 2d 776) Justice Andrias meticulously and tactfully considered each of the applicable factors set forth in the statute (see, CPL 210.40 [1] [a]-(j]). As is here relevant, he concluded that although the offense charged was a serious one and the proof of it, at least in a technical sense, strong, there remained important and ultimately predominant countervailing equities. Foremost among these was the circumstance that despite all of the litigation over the validity of the subpoenas issued to Ms. Stewart and cocounsel, the essential and very difficult underlying questions as to the constitutional and ethical propriety of compelling defense counsel to testify before a Grand Jury actively investigating matters in which their indicted clients were implicated remained unresolved. In the absence of authority providing more definitive guidance as to the manner in which the constitutional guarantee of a criminal defendant’s right to the assistance of counsel was to be reconciled with the apparently conflicting assertion by the Grand Jury of its right to the evidence of defense counsel, Ms. Stewart’s position was, in the court’s view, far from frivolous and her principled adherence to that position, even in the face of a court order requiring inconsistent action, ought not to have been treated as felonious. If permitted to stand, the felony charge created a situation in which Ms. Stewart would, in the event of conviction, suffer, in addition to any criminal penalties imposed, automatic disbarment, and that was a consequence which the court deemed disproportionately harsh, not only because Ms. Stewart’s testimonial refusal had been premised on arguably meritorious principle, but because, on the record before the court, that refusal stood alone as a solitary act of defiance in a career otherwise characterized by unwavering dedication to the rule of law. The exercise of prosecutorial discretion permitting, indeed actively seeking, such an inequitable outcome was all the more to be condemned because the narcotics prosecutor had had the option of attempting to coerce Ms. Stewart’s compliance with the subpoena by seeking sanctions for civil contempt. That course, foreclosed by the indictment for felony contempt, would not only have avoided placing Ms. Stewart in jeopardy of the catastrophic and largely irreparable professional consequences of a conviction for criminal contempt, but would, as well, have been more likely productive of the evidence the Grand Jury had sought. It would also have afforded Ms. Stewart greater latitude to litigate the legality of her specific testimonial refusals. In this connection, Justice Andrias observed: "The Penal Law route chosen by the prosecutor, while legal in a technical sense, all but precluded a review of the appropriateness of Ms. Stewart’s question-by-question refusals. With Judiciary Law contempt, the witness could have been confined while the issue was heard by higher courts on an expedited basis (or the jailing could have been stayed briefly for an appellate review). However, with Penal Law contempt, the lawyer is forced to defend herself and it is her refusal to testify, not the information sought, which becomes the focus of the litigation. By choosing this route the likelihood of ever obtaining the information is foreclosed because review will not come until a conviction after a full trial with all of the inevitable pretrial and posttrial delays. Once formally indicted for Penal Law criminal contempt, the opportunity of purging the contempt is hardly available” (158 Misc 2d 776, 781, supra).

A final factor cited by Justice Andrias in support of his decision to dismiss the indictment was the narcotics prosecutor’s decision to seek an indictment against Ms. Stewart from the very same Grand Jury that had witnessed her alleged contempt and had heard all of the evidence upon which the indictment of her client and his codefendants in the underlying drug conspiracy prosecution had been based. In this connection Justice Andrias noted perceptively (supra, at 785-786):

"For several years, the Grand Jury that indicted Ms. Stewart for this essentially technical, albeit serious infraction, heard about million dollar drug conspiracies and, however unsubstantiated, suggestions that Ms. Stewart might consciously or otherwise cause injury or worse to her client Mr. Maldonado, or Ms. Chang. Yet the prosecutor, whose professed interest was to merely obtain the information Ms. Stewart withheld, proceeded to seek an indictment for criminal contempt before this very same Grand Jury.

"Were these grand jurors capable of treating fairly a lawyer who was mentioned in the same breath as this evidence of drugs and retribution? Was the prosecutor within his discretion to present the contempt charge to the same jury that heard of drugs and violence? * * *

"The use of the same Grand Jury to hear and weigh Ms. Stewart’s alleged contempt offense as heard the drug and other alleged wrongs of her client and the other alleged drug conspirators was palpably unfair and could not but have prejudiced Ms. Stewart’s ability to get a fair vote from these grand jurors. Ms. Stewart, in their eyes, was preventing the prosecutor from indicting the head of the conspiracy which the Grand Jury had determined existed.”

Although I agree with Justice Andrias that a fair exercise of prosecutorial discretion would not have permitted the prosecution of an attorney for felony contempt in circumstances where the alleged contempt resulted from the attorney’s adherence to a principled and quite possibly meritorious position, and where prior resort by the prosecutor to readily available civil contempt sanctions might well have been more productive both of the evidence assertedly sought and of a full and final determination of the underlying issues, there are I believe other, even more compelling reasons why prosecution of the subject indictment would not be just. ¡

An attorney served with a subpoena requiring her to give evidence to a Grand Jury investigating matters in which her client is implicated and for which he has, in fact, already been indicted, is entitled, in responding to the subpoena, to be kept apprised of the status of the attorney-client relation. This proposition, which I would have thought self-evident as a matter of due process and basic ethical precept, and whose truth I cannot perceive except as essential to an attorney’s rendering of competent representation at a time when the representational relation is uniquely vulnerable, is sorely tested, indeed, affronted by the narcotics prosecutor’s conduct in the underlying subpoena litigation.

Here, Ms. Stewart was served with a subpoena in July 1989 to testify before the Grand Jury that had indicted her client and which, lately in receipt of the evidence of a highly placed coconspirator (Torres), was poised to hand down a superseding indictment. Under the circumstances, Ms. Stewart could not view the subpoena’s demand for information facilitating the indictment of the conspiracy’s alleged leader as benign to the interests of her client; nor could she view the subpoena, issued at a time when her client had already been incarcerated for some six months and plea negotiations were not progressing productively, other than as subversive of the already amply stressed relation she maintained with her client; her client could not be expected to meet the prospect of her visit to the secrecy of the Grand Jury room with equanimity. Given these circumstances and the unsettled state of the law governing the issuance of Grand Jury subpoenas to defense counsel, Ms. Stewart understandably felt obliged to challenge the subpoena and did so, arguing in essence that the subpoena ought not to have been issued because of its considerable potential, under the circumstances, to be destructive of the attorney-client relation and, with it, of her client’s Sixth Amendment right to counsel. While not minimizing the gravity of Ms. Stewart’s claim, Justice Snyder, as noted, denied the motion to quash, finding that the right to counsel was outweighed by the Grand Jury’s superior, albeit nonconstitutional, claim of right to information, which, while perhaps not absolutely necessary to its investigation, was nevertheless relevant thereto and not, in the court’s estimation, otherwise reasonably obtainable. Ms. Stewart’s appeal of Justice Snyder’s ruling ensued, and key to the arguments placed before this Court as well as to this Court’s eventual disposition of the appeal, was the existence of a viable attorney-client relationship between Ms. Stewart and her client, Dominick Maldonado. Indeed, it was precisely to safeguard that "extant” relationship from the " 'chilling effect’ ” of the Grand Jury subpoena that the majority held that enforcement of the subpoena should be stayed until the underlying representational relation had come to an end (156 AD2d, supra, at 294). And, conversely, it was because the dissenters could find no evidentiary support for the allegation, accepted by the majority, that the "extant” relationship had been chilled, that they advocated the immediate enforcement of the subpoena. What neither the Judges of this Court nor Ms. Stewart knew, however, was that by the time the appeal was decided in late December 1989, Ms. Stewart’s attorney-client relationship with Dominick Maldonado had already been irreparably ruptured — that nearly a month prior to this Court’s decision in the matter, Ms. Stewart had been effectively displaced as Maldonado’s counsel by "shadow counsel”. Yet, not even in the aftermath of the appeal, when the extent of the Court’s reliance on the supposedly "extant” representational relationship was made unmistakably clear, was Ms. Stewart’s true representational status divulged. To the contrary, the People, in their motion for leave, implicitly represented that the relationship continued — that because of the underlying attorney-client relationship and the coterminous stay imposed by this Court, the Grand Jury inquiry would be stymied indefinitely. Indeed, the very issue the People would have had reviewed by the Court of Appeals was whether the existence of the assertedly ongoing representational relation was a sufficient predicate for a stay such as the one issued. As noted, matters continued in this fashion — the parties going through the motions of litigating an issue which, as framed by the People, had long since been rendered moot by events known to the People but not their adversary, and it was not until June 1990 that the true status of Ms. Stewart vis-á-vis the individual she had taken to be her client was disclosed, and then only when the disclosure was compelled over the People’s objection. The parties then adjusted their stances to the newly acknowledged but long pending reality: Ms. Stewart formally withdrew as Maldonado’s attorney and the People withdrew their appeal and proceeded to schedule Ms. Stewart’s Grand Jury appearance, albeit without any great haste.

The nondisclosure, indeed, active suppression, of the true status of Ms. Stewart’s representation between November 1989 and June 1990 is comprehensible only as a concession to the shadow counsel arrangement into which the narcotics prosecutor, Justice Snyder and Domini