People v. Jobi

37 Misc.3d 954

953 N.Y.S.2d 471

2012 N.Y. Slip Op. 22305

The PEOPLE of the State of New York

v.Kehinde JOBI, Defendant.

Supreme Court, Bronx County, New York.

Oct. 22, 2012.

A.D.A Nicholas Lewis, A.D.A Stephanie Taylor, Bronx County District Attorney's Office, Bronx, for the People.

Steven L. Brounstein, Esq., Bayside, for the Defendant.

MARTIN MARCUS, J.

In this case, the defendant, formerly an attorney, was charged with four counts of Grand Larceny in the Third Degree (§ 155.35), one count each of Grand Larceny in the Fourth Degree (Penal Law § 155.30), Petit Larceny (Penal Law § 155.25), Scheme to Defraud in the First Degree (Penal Law § 190.65[1][b] ), and nine counts of Practice of Law by Disbarred or Suspended Attorney (Judiciary Law § 486). In essence, the allegations are that the defendant stole money from several clients and another person, both before and after she was suspended from the practice of law. Before any of these charges were brought against the defendant, the Disciplinary Committee for the First Judicial Department began an investigation into several of these matters, which later became the subject of some of the criminal charges she is now facing.

After complaints were filed against her, and before she was suspended from the practice of law, the defendant testified in a hearing conducted on behalf of the Disciplinary Committee on November 16, 2006, February 21, 2007, March 13, 2008, and November 23, 2009, the first three times without an attorney, and on the final occasion, with one. At the beginning of the first appearance, Roberta Kolar, Esq., an attorney for the Committee, informed the defendant that she was appearing voluntarily, that she was entitled to have counsel with her, and that the proceedings would be adjourned any time she requested counsel. Ms. Kolar also told the defendant that:

This is a civil proceeding and if you should assert your Fifth Amendment privilege we can make an adverse inference. By statute and case law you are required to answer questions even though you might at some point raise an objection to they're (sic) being entered into evidence should it come to that. But you do have to answer.

Finally, Ms. Kolar informed her that “this proceeding is confidential pursuant to Section 90.10 of the judiciary law, Title 29.” Ms. Kolar gave the defendant similar admonitions when she testified on March 13, 2008.

On all four occasions that the defendant appeared she answered the questions put to her. On November 16, 2006 and March 13, 2008—the two occasions in which the defendant was given the admonitions set forth above—she was asked whether money a complainant named Jean John had given to her for the down payment on the purchase of property was still in her escrow account. Both time she testified that the money was still there.

Based on banking records, the People allege that this testimony was false, a fact which the defendant does not now contest. The People assert that in this criminal case, in which the defendant is charged with, inter alia, stealing that money from Ms. Jean, the falsity of that testimony evidences a consciousness of guilt. Accordingly, they asked permission to offer those portions of the defendant's hearing testimony at the trial. In a motion in limine, the defendant objected to the admission of the testimony, claiming that the adverse inference that would have been applicable had she asserted her right against self-incrimination rendered her answers compelled within the meaning of the Fifth Amendment. After hearing argument and receiving written submissions from both sides, I held the testimony admissible. This opinion sets forth the reasons for that decision.

The admonitions the defendant received were, without doubt, poorly phrased. As quoted above, she was first told that she had a Fifth Amendment right not to testify, albeit with the possible consequence of the drawing of an adverse inference in the hearing. She was then told that the was “required to answer questions” but that her testimony would be “confidential.” She was not informed that if she answered questions, they might be offered in evidenceagainst her in a subsequent criminal proceeding. Nevertheless, she does not now claim that by being “required to answer questions” she believed she would be compelled to answer them even had she asserted her Fifth Amendment privilege. Nor does she claim that she believed the promise of confidentiality meant her answers could not be offered against her in any subsequent criminal proceedings.

The defendant also does not assert that if she had been specifically informed of the possibility of their use in a subsequent criminal proceeding she would have asserted the privilege. In any case, such a claim would have been unavailing. In U.S. v. Rubinson, 543 F.2d 951 (2d Cir.1976), the defendants in a prior civil proceeding asserted the Fifth Amendment privilege as to some questions put to them, but made statements is response to others, and those statements were later offered in evidence against them in a criminal prosecution. The defendants argued that the statements were inadmissible because they would have asserted the privilege in the civil proceeding had they known they would be later prosecuted. The Court rejected the claim, reasoning that since they could have invoked the privilege with respect to those questions they did answer, “they [could not] rely upon what information they did disclose to establish prejudice.” Id. at 961.

The sole ground upon which the defendant does claim that she was compelled to testify at the disciplinary hearing is by the prospect of the adverse inference that could have been drawn against her in that proceeding had she invoked her privilege against self-incrimination. In support of her claim, the defendant cites People v. Bass, 140 Misc.2d 57, 529 N.Y.S.2d 961 (Sup. Ct. Bronx Co.1988). There the court precluded the People from offering against the defendant statements he made to a certified social worker, which the Court held were privileged. The defendant does not claim such a privilege applied to her testimony in this case, and none did.

The defendant also relies upon People v. Kleiner, 170 Misc.2d 850, 852, 652 N.Y.S.2d 934 (Sup. Ct. Richmond Co.1996), in which the court held that,

[j]ust as in a criminal case where defendant's statements at a hearing on a motion to suppress are not admissible if offered by the People in their direct case, likewise defendant's civil case statements in a pro se lawsuit alleging constitutional violations ought not be introduced against him at a criminal trial on related issues. ( See, e.g., Simmons v. U.S., 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 [1968] ).

In Simmons, 390 U.S. at 394, 88 S.Ct. 967, the Supreme Court held that “when a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt unless he makes no objection.” As the Supreme Court and numerous other courts have made clear, however, the Fifth Amendment applies quite differently to testimony given in a civil proceeding, making the analogy drawn in Kleiner inapposite.

In Griffin v. California, 380 U.S. 609, 614, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), the Supreme Court held that a person may not suffer any penalty in a criminal case for exercise of her Fifth Amendment right to silence, and that this prohibition is not restricted to fine or imprisonment, but extends to the imposition of any sanction which makes assertion of the Fifth Amendment privilege “costly.” In that case, the penalties in question were comment by the prosecution on the accused's decision not to testify at his criminal trial, and an instruction by the court that such silence is evidence of guilt—that is, that the jury could draw an adverse inference from the defendant's failure to testify. In this case, however, that adverse inference would be drawn, not in the criminal case itself, as in Griffin, but in the disciplinary proceeding in which the defendant testified.

In Spevack v. Klein, 385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574 (1967), an attorney facing disciplinary proceedings in New York was disbarred, as this State's law then permitted, solely because he refused to honor a subpoena for records and to testify at the judicial inquiry, asserting his Fifth Amendment privilege. Noting that “[t]he threat of disbarment and the loss of professional standing, professional reputation, and of livelihood are powerful forms of compulsion to make a lawyer relinquish the privilege,” the Court reversed the decision of the Court of Appeals upholding Spevak's disbarment, finding that a disbarment on that basis violated the Fifth Amendment. Id. at 516, 87 S.Ct. 625;see also Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967) (statements made by police officers under investigation by State Attorney General's office could not be used against them in criminal proceeding because the officers were told that if they did not answer them without grant of immunity they were subject to removal from office). As the New York Court of Appeals has explained, in Spevack the Supreme Court viewed “[t]he threat of disbarment for the mere exercise of the privilege ... as an unconstitutional compulsion to waive the privilege without a coextensive protection against the ultimate use of those statements in a criminal proceeding.” Matter of Anonymous Attorneys, 41 N.Y.2d 506, 511, 393 N.Y.S.2d 961, 362 N.E.2d 592 (1977). Thus, it is clear that when suspension or disbarment can flow automatically from exercise of an attorney's Fifth Amendment right, the attorney can be compelled to testify only “[w]hen assurance is made that the statements made cannot be used in a related criminal action ....” Id.

As the People correctly observe, however, the assertion of the right against self-incrimination in an attorney's disciplinary proceeding...