COUNTY COURT: STATE OF NEW YORK PUTNAM COUNTY X THE PEOPLE OF THE STATE OF NEW YORK, NOTICE OF MOTION

FOR AN INQUIRY PURSUANT TO PEOPLE v GOMBERG

-againstReturn Date: November 18, 2013 ALEXANDRU HOSSU a/k/a ALEX HOSSU,

(Adler, J,) Defendant. Putnam County Indictment Number 32-20 13 X 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
th 18

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 York October 28, 2013 Yours, etc., JANET DIFIORE District 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, LLP 600 Mamaroneck Aye, Suite 400 Harrison, NY 10528

COUNTY COURT: STATE OF NEW YORK PUTNAM COUNTY X THE PEOPLE OF THE STATE OF NEW YORK, AFFIRMATION IN SUPPORT OF MOTION FOR AN INQUIRY PURSUANT TO PEOPLE v GOMBERG

-againstReturn Date: November 18, 2013 ALEXANDRU HOSSU a/k/a ALEX HOSSU, (Adler, J.) Defendant. Putnam County Indictment Number 32-20 13

STATE OF NEW YORK COUNTY OF WESTCHESTER

)
ss.:

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 Peoples 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 DiFiores 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 second degree under Penal Law under Penal Law

130.35(1), two counts of rape in the

130.30(1), and endangering the welfare of a child

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 Sheriffs 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 victims aunt, who is the victims guardian. During the meeting of these parties at the CAC, it was learned that defendant had a relationship with DA Levy. Defendant was DA Levys 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

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 Levys 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 Peoples Exhibit 2). On March 20, 2013, the Putnam County Sheriffs 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

defendants 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 defendants 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 Levys 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

issue a public statement in response to the aforementioned report that defendants home address was DA Levys 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 victims 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 Levys 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 defendants crimes was presented to a Putnam County grand jury. The grand jury voted to not hear testimony from DA Levy.

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 defendants 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 Attorneys Office. York attributed DA Levy as a source of his criticism. Aside from the meritless nature of the complaints, ADAs Yorks telephone call was

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 defendants 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 Attorneys Office and Putnam County District Attorneys 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 defendants 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

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 Levys 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 2 appeared on CNN to discuss his civil suit, and by extension, this criminal case. On the heels of DA Levys 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; Defendants 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 defendants arrest without first enhanc[ing] the case against him, and also falsely claimed to the media that, inter a/ia,
he complaint was accompanied by a verification from DA Levy averring, under penalty of perjury, that 1 T 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.comTRAI\ISCRIPTSl308/16nday.04.html and (last visited on October 28, 2013).

he had been living at DA Levys 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 Levys 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 victims 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 defendants 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. Mentzers law partner, Nicole Sheindlin, Esq., is his wife and step-sister of DA Levy. Thus, Mentzer is DA Levys brother-in-law. Four days after Mentzers visit with defendant, on September 24, 2013, during a
conference in the Courts 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 Aitchilers 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

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 defendants 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 defendants attorney (Attached hereto as Peoples Exhibit 3 is a Copy of Altchilers 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 Altchilers 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

defendant were in actual conflict. In response to an inquiry from the Court, defendant confinried that he had heard Aitchilers 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. Bartletts daughter is the girlfriend of defendant, who has been reported to be the nanny to DA Levys 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-putnamc4nti-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 defendants 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 Peoples 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 Altchilers request to withdraw from representing defendant. Mentzer in turn confirmed that he was now representing defendant. Due to Mentzers 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

y decision and order, dated October 15, 2013, the Court also denied defendants omnibus motion in part 4 B and granted it in part.

11

between defendant and Mentzer. The Court granted the Peoples 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 Scheinkmans appointment of a Special District Attorney upon DA Levys 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 Levys 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 Peoples 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, hell 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 Peoples 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 defendants girlfriend and her mother, Lynn Bartlett. and that defendants girlfriend and her mother had paid Altchiler. In response to Mentzers 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 Peoples 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 dont think theres 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 clients right to counsel and a breach of other ethical rules (see Copy of October 23, 2013, Journal News article attached hereto as Peoples Exhibit 4E). It was
not

reported in the article which actions of DA Levy Aitchiler believed had

violated defendants constitutional right to counsel. On October 24, 2013, the Journal News further reported on the claim of defendants 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 Levys request, offering to assist Hossus 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 Peoples 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 Prosecutors

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 years and allowed political forces to rip him apart like wild dogs fighting over a steak. Instead, Mr. Levy stood by his friend and helped contribute to his legal expenses to ensure he had an adequate defense (see Copy of October 25, 2013, New York Times article attached hereto as Peoples Exhibit 5).

14

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 York October 28, 2013

WILLIAM C. MILACCIO Assistant District Attorney

15

MEMORANDUM OF LAW TO PROTECT DEFENDANTS SIXTH AMENDMENT RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL AND ENSURE THAT ANY CONVICTION, IF OBTAINED, IS NOT SUBJECT TO LATER ATTACK DUE TO COUNSELS ALLEGED CONFLICT OF INTEREST, THE COURT SHOULD CONDUCT THE NECESSARY INQUIRY OF DEFENDANT UNDER PEOPLE v GOMBERG. 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 the right to retain counsel of ones choice may clash when a retained attorney is involved in an apparent conflict of interest, a Trial Judge has a duty to protect the right of an accused to effective assistance of counsel. At the same time, a court should not arbitrarily interfere with the attorney-client relationship (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 defendants 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 attorneys 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 governments 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 Sheriffs 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 defendants 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 (People v Lombardo. 61 NY2d 97. 103 [19841, quoting People v Macerola, 47 NY2d at 264 exist [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 bated case with Aitchiler at the helm (Peoples Exhibit 4B-C), the problem is only exacer ant and DA by his brother-in-laws substitution. As demonstrated below, although defend ty of Levy are reportedly close personal friends, they do not necessarily have an identi interest[s] in this case (People v Carncross, 14 NY3d 319, 329 [2010]), due to DA t Levys professional and ethical responsibilities as the elected Putnam County Distric prior Attorney, and DA Levys personal. political and economic interests; as defendants attorney has already publicly stated, what is good for DA Levy may not be good for defendant (Peoples Exhibit 4B). Notwithstanding the order disqualifying DA Levy and the Office of the Putnam Levy County District Attorney from the investigation and prosecution of this matter, DA 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 ant, statement, DA Levys interests are plainly in potential conflict with those of defend who is charged with committing a serious and violent felony offense in Putnam County the while DA Levy was in office. Pivotally, despite DA Levys disqualification to further s best interests of the criminal justice system and unspecified ethical consideration t 2), (Peoples Exhibit 1), the decision and order granting that application (Peoples Exhibi and DA Levys public statements offering his complete cooperation to the prosecution, ce there is also mounting and substantial public claims that DA Levy has sought to influen d defendants prior attorney and the defense, and, therefore, defendant must be advise

18

regarding the potential risks resulting from any similar interference with his current attorney, DA Levys brotherin-law.
DA Levys influence of the defense has apparently included his payment of

defendants legal fees (Peoples Exhibit 4A). DA Levy has now publicly acknowledged that he paid. at least in part, for Altchilers 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 attorneys 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 lawyers duty of loyalty or independent judgment to the client]; see e.g., People v McCutheon, 109 AD3d 1086
h [ t 4

Dept. 2013] [finding the court erred by not

conducting inquiry after learning that the defendants 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 Altchilers service. Although Lynn Bartlett has made public statements that she paid Altchiler, Altchiler has publicly denied receiving any payment from her. Menzter has

19

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 defendants 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 defendants original attorney, DA Levys 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 (Peoples 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 (Peoples Exhibit 4C). Lastly, Altchilers request to be relieved due to conflicts (Peoples Exhibit 3), undisclosed at the time but now apparently based, at least in part, upon DA Levys reported interference, is further evidence of the potential conflict between defendant and Mentzer, DA Levys brother-in-law. In addition to the conflict between defendant and DA Levy arising from DA Levys professional and ethical obligations, as noted above, DA Levy also has political and economic interests that potentially conflict with defendants interests. Any conviction of defendant, 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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ations Levys interests over those of defendant might either not engage in any plea negoti 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 Levys defamation suit against him, DA Levy also has an additional and independent political and economic interest in pursuing any defense t which focuses on the propriety of the Sheriffs conduct, however tangential that conduc Thus, may be to the defense of the rape allegations by the child victim against defendant. the an attorney unduly influenced by DA Levy might favor a strategy which emphasizes of claims raised by DA Levy in his civil suit. Judged in hindsight and with the benefit Aitchilers recent revelations, Altehilers dismissal motion which was denied by this the Court as meritless, primarily focused on the propriety of the Sheriffs investigation of case after the child came forward with her rape complaint and tracked the claims raised 6 by DA Levy in his defamation suit. These potential conflicts must of course be considered by the Court in conjunction with Altchilers letter to the Court seeking withdrawal and his subsequent public ts of statements. In his letter to the Court, Aitchiler requested to be relieved due to conflic interest which he did not divulge presumably due to attorney-client privilege (Peoples ts Exhibit 3). And, thereafter, he has apparently stated, unequivocally so, that the interes re with of DA Levy diverged from those of defendant, and DA Levy attempted to interfe Altchiler the defense, as noted above (Peoples Exhibits 4B-E). Any representation from
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alleged attempts to It is also worth noting that, long before the public disclosures regarding DA Levys defendants that influence the defense, the People wrote in opposition to Aitchilers motion to dismiss by him is both cited reports media claim that the grand jurys decision to indict was somehow prompted by in Putnam official ement enforc law g curious and illogical. In theory, it is DA Levy, an elected and rankin es (Peopl rapist accused an defendant, to linked County, who might consider it prejudicial to him to be Thus, original]). in [emphasis 25 at us Motion Omnib ants Memorandum of Law in Opposition to Defend have been raised with even before the recent disclosures, Aitchilers choice of some arguments appeared to 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 Haikins, 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 clients 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 Bartletts alleged payment of legal fees on behalf of defendant, particularly in light of both Aitchilers 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 Levys undue influence on the defense is now more acute due to Mentzers familial relationship to Levy. Because of its significance, it bears repeating that Mentzer is Levys brother-in-law. And DA Levys step-sister practices law as her husbands 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 Levys payment of defendants 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 Mentzers 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 Levys 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 counsels 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 Levys reported attempts to interfere with the defense. Altchiler should be made to produce for this Courts 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 defendants 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 defendants 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 of Westchester County Special District Attorney in this Matter Westchester County Courthouse Ill Dr. Martin Luther King, Jr., Blvd. White Plains, New York 10601 (914) 995-3497

WILLIAM C. MILACCIO RICHARD LONG WORTH HECHT Assistant District Attorneys Of Counsel

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