COUNTY COURT: STATE OF iEW YORK PUTNAM COUNTY X THE PEOPLE OF THE STATE OF NEW YORK, AFFIRMATION IN REPLY

-againstReturn Date: November 18, 2013 ALEXANDRU HOSSU alk/a ALEX HOSSU, (Adler, J.) Defendant. Putnam County Indictment Number 32-20 13 X STATE OF NEW YORK

)
ss.:

COUNTY OF WESTCHESTER) WILLIAM C. MILACCIO, an attorney duly admitted to practice before the courts of the State of New York, under penalty of perjury, hereby affirms and states: that he is an Assistant District Attorney of Westchester County and,
acting

on behalf of Special District Attorney Janet

DiFiore in this case, submits this reply affirmation in support of the Peoples pending motion for a Gomberg
inquiry

(People v Gornberg, 38 NY2d 307 [1975]); this affirmation is made upon

information and belief, the sources of which are the papers previously filed in this case. By notice of motion, dated October 28. 2013, accompanied by an affirmation, exhibits (15) and memorandum of law, the People moved for an on-the-record inquiry of defendant pursuant to People v Gomberg. 38 NY2d 307. On November 6, 2013, the People filed and served a supplemental affirmation and additional exhibits (6-7), in support of that motion.

On the same date, the People also received an affirmation and accompanying exhibits
from counsel for defendant. Daniel Mentzer, Esq. (hereinafter, Mentzer Affirmation) filed in

response to the Peoples motion. Mr. Mentzer does not oppose an

inquiry

by the Court of

defendant and consents to the appointment of an independent counsel to advise defendant on the yet to be fully disclosed conflict of interest raised by the Peoples motion (Mentzer Affirmation at3, 35). Pivotally however, Mr. Mentzer explicitly opposes any inquiry by this Court of Robert Y. Altchiler Esq., defendants former attorney, who has publicly stated that DA Levy has attempted to direct defendant Hossus defense to his own benefit. This objection is premised upon the assertion that an inquiry by this Court would allow Aitchiler to continue making statements about defendant, his family, friends and specifically DA Levy, purportedly to the detriment of defendant (Mentzer Affirmation at 28). How Aichilers already public criticism of DA Levys machinations in this case could further prejudice defendant is not explained. An ostensible concession to a Gomberg inquiry attached to strong opposition to any Court inquiry of Aitchiler is entirely consistent with the self-interest of Mr. Mentzer to protect DA Levy who is Mr. Mentzers brother-in- law. Mr. Mentzer only visited his now client after being called by DA Levy and he did not accept retention in the case until after clearing it with DA Levy. This close familial connection is an ethical concern in a case where the prior attorney withdrew due to DA Levys interference in the case. Indeed, Mr. Mentzers affirmation reads like an attempt to shield DA Levy from additional criticism. It also attempts to explain Altchilers criticism of DA Levy by attacking Altchiler. Mr. Mentzer clearly has a duty of loyalty to DA Levy as demonstrated by his getting DA Levys approval to take this case and his instant attempt to undermine Altchilers attack of his brother-in-law. Both DA Levy and Mr.

Mentzer seem to be joined in a concerted defense predicated on the self-preservation of DA Levys reputation. Such an imperative provides a basis for a conflict of interest, and this Court must have Aitchiler define the basis for the conflict that Aitchiler has reported (see United States v. Schwarz, 283 F3d 76 [2d Cir. 2002]; see also People v Wynn, 67 AD3d 423 [1st Dept. 2009] [Gomberg inquiry conducted after the defendant retained as his attorney the brother of a former prosecutor who had handled the initial stages of the case and interviewed the defendant]). In short, Mr. Mentzers affirmation demonstrates a compelling reason for this Court to question Aitchiler about DA Levys reported interference with the defense. Mr. Mentzer has conspicuously failed to expressly contest the truthfulness of Aitchiler s publicly reported statements that DA Levy had sought to interfere, indeed impos[e] his will on the defense. Although Mr. Mentzer recounts conversations between himself and DA Levy, including a telephone call to DA Levy in which he sought permission to represent defendant (Mentzer Affirmation at j 18. 20), he fails to recount any statement, let alone offer a sworn statement, from DA Levy refuting Altchilers statements. Given Altchilefs prior submission to the Court asking to be relieved due to a number of conflicts of interest that had arisen (Peoples Exhibit 3), his subsequent, publicly reported statements that DA Levy had attempted to interfere with the defense of this case and Mr. Mentzer s failure to directly refute Altchiler s statements, an inquiry of Altchiler by this Court is necessary. This Court must ensure that both it and defendant are aware of the potential conflicts which led to Altchilers withdrawal and whether those conflicts remain with DA Levys brother-in-law as his attorney. A waiver by defendant of some unspecified actual conflict, perhaps not even known to the Court, will not suffice (United States v Schwaiz, 283 F3d 76).

Contrary to Mr. Mentzers contention, Altchilers statements have neither disparaged defendant nor revealed any communications protected by the attorney client privilege. Aitchiler has taken pains to protect defendant (see e.g. Peoples Exhibit 3; Minutes of October 15, 2013, Proceeding at 11). Also, as previously noted by the People, any communication between Altchiler and DA Levy is also not privileged because DA Levy is not Aitchilers client, however much DA Levy appears to have tried to use Altchiler as his agent. Finally, Mr. Mentzers claim that any further statements from Aitchiler are potentially damaging to DA Levy as a defense witness (and thus, to defendant) rings hollow. Altchilers reported claims of interference by DA Levy are unanswered, and the seriousness of those claims far outweigh any putative damage a Gomb erg inquiry, designed to reveal the true scope of any potential conflict to defendant, could have on DA Levy as an alleged character witness for defendant. In light of DA Levys public animus to the Putnam County Sheriffs Office which preceded this case, his pecuniary interest in his civil suit filed against the Sheriff for an alleged defamation arising out of statements made in connection with the arrest of the defendant in this case, and his alleged leaks of information relating to the grand jury proceedings which if true are potentially criminal in nature, he is not at this juncture a compelling character witness for defendant. Moreover, that DA Levy either intentionally or ignorantly allowed defendant, an illegal alien, to declare his address to the New York State Department of Motor Vehicles as DA Levys home address, additionally undermines DA Levys credibility. In sum, Mr. Mentzers response to this application demonstrates a need for the application to be granted and for it to be done in a manner designed to achieve its objectives. Both this Court and defendant would be entirely ill-served by conducting a Gomberg inquiry in

the blind as Mr. Mentzer requests. Given the significance of protecting defendant and the process, Mr. Mentzers request is beyond the pale.

WHEREFORE, for the reasons more fully set forth in the previously filed and served original and supplemental affirmations and the memorandum of law accompanying the Peoples original affirmation, the People respectfully request that the Court conduct an on-the-record inquiry pursuant to People v Gomberg, supra.

Affirmed to be True. Dated: White Plains, New York November 12. 2013

WILLIAM C. MILACCIO Assistant District Attorney

AFFIDAVIT OF SERVICE STATE OF NEW YORK

)
ss.:

COUNTY OF WESTCHESTER)

I, Deborah Jones being duly sworn, deposes and says that on the 12th day of November, 2013 she served one (1) copy of this Affirmation in Reply upon: Daniel i Menizer, Esq., ofMenizer & Scheindlin, LLP., 600 Maniaroneck Avenue,
Harrison, New York 10528-1635; by enclosing one (1) true copy in securely sealed

envelope and handing same over to a United Parcel Service representative, for overnight delivery, at 110 Dr. Martin Luther King Jr., Blvd., in the City of White Plains, New York. Deponent further says that the party above is the last known attorney for the defendant herein and his last known address appearing from the last papers served by him on this Office is as stated above. Deponent is over the age of 18 years.

Sworn to before me this 12th day of November, 2013

I,,.

Notary Public

Iaren Pugliese Notary Public, State of New York No. 60-01PU4770470 Qualified in Westchester County Commission Expires November 30, 2014