2 No. 102
The People &c.,
Respondent,
v.
Michael DePallo,
Appellant.
_________________________________________________________________
2001 NY Int. 81
July 2, 2001
This opinion is uncorrected and subject to revision before publication
in the New York Reports.
Sally Wasserman, for appellant.
Jonathan J. Silbermann, for respondent.
_________________________________________________________________
WESLEY, J.:
This case calls upon us to clarify a defense attorney's
responsibilities when confronted with the dilemma that a client
intends to commit perjury.
Defendant and his accomplices executed a calculated attack on a
71-year-old man, ransacking his home, stabbing him repeatedly with a
knife and scissors, and finally bludgeoning him to death with a
shovel. Defendant's blood was found at the scene and on the victim's
clothing. Defendant's fingerprint was also discovered in the home and,
upon arrest, he made several incriminating statements placing him at
the scene of the crime. Defendant also insisted on making a statement
during pre-trial proceedings in which he admitted that he had forced
one of his accomplices to participate in the crime under threat of
death.
At trial, defense counsel noted at a sidebar that he had advised
defendant that he did not have to testify and should not testify, but
if he did, he should do so truthfully. Defendant confirmed counsel's
statements to the court but insisted on testifying. Defense counsel
elicited defendant's direct testimony in narrative form. Defendant
testified that he was home the entire evening of the crime, and that
his contrary statements to the police were induced by promises that he
could return home. During the prosecutor's cross-examination, defense
counsel made numerous objections.
SNIPPETS:
This opinion is uncorrected and subject to revision before publication in the New York
This case calls upon us to clarify a defense attorney's responsibilities when confronted with
Defendant and his accomplices executed a calculated attack on a 71-year-old man, ransacking
Defendant's fingerprint was also discovered in the home and, upon arrest, he made several
At trial, defense counsel noted at a sidebar that he had advised defendant that he did not
Defense counsel elicited defendant's direct testimony in narrative form.
After both sides rested, defense counsel addressed the court in Chambers, outside the
"Knowing that, I told the defendant I cannot participate in any kind of perjury, and you
But, he, you know, dealing with him is kind of difficult and he was insistent upon taking the
The court then noted that counsel had complied with the procedures for such circumstances as
The Appellate Division affirmed, rejecting defendant's claims that he was denied effective
A Judge of this Court granted leave to appeal,
A lawyer with a perjurious client must contend with competing considerations -- duties of
In light of these limitations, an attorney's duty to zealously represent a client is
Additionally, DR 7- 102mandates that "lawyer who receives information clearly establishing
Defendant insisted on proceeding to give the perjured testimony and, thereafter, counsel
defendant contends that his counsel should have sought to withdraw from the case.
We also reject defendant's contention that his right to be present during a material stage of
In sum, because the subject matter of the ex parte communication here was merely procedural,
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