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A divided New York Court of Appeals Tuesday seemingly adopted a rule that the attorney-client relationship is irreparably damaged whenever a lawyer testifies against the client. By a 5-2 margin, the court in People v. Lewis, written by Judge Albert M. Rosenblatt, upheld an ineffective-assistance claim and overturned a drug conviction because defense counsel provided testimony — briefly and outside the presence of the jury — that was contrary to the interests of his client. The ruling expands on a 2002 decision in which the court said attorneys should withdraw when called to testify against their client on an issue of significance. It essentially concludes that any time a lawyer testifies against a client it is significant, and therefore should result in withdrawal. The Lewis case was from Steuben County, where a defense attorney testified at a hearing to uncover the source of a threatening telephone call to a prosecution witness. The issue decided by the Court of Appeals, whether the defendant, Anthony A. Lewis, was denied effective assistance, fractured the Appellate Division, 4th Department. It upheld the conviction in a 3-2 decision that was overturned by Tuesday’s split vote by the Court of Appeals. Lewis’ appeal dealt largely with a witness intimidation issue and his attorney’s role as a witness for the prosecution. Lewis was on trial for cocaine possession and sale charges. The prosecution intended to elicit testimony from a witness who bought cocaine from the defendant and had signed a statement describing the transaction. That statement was provided to the defense just after jury selection. Within an hour, the witness received a threatening telephone call. The witness reported the threat and said he would not testify because he was concerned for his safety and that of his family. Prosecutors alleged that Lewis, who was then free on bail, was behind the threats, and therefore had forfeited his right to confront the witness. The prosecution sought to introduce the witness’ statement in his absence. That prompted a so-called Sirois hearing, one to determine whether a missing witness’ statements can be used by the prosecution on the grounds that the defendant caused the witness’ absence. See Matter of Holtzman v. Hellenbrand and Sirois, 92 AD2d 405 [1983]. At a Sirois hearing, the prosecution must establish through clear and convincing proof that the defendant was responsible for the unavailability of the witness. See People v. Geraci, 85 NY2d 359 [1995]. The defense counsel was called to testify and did so without objection. The lawyer testified that he told his client, and only his client, about the witness’ statement. A prosecutor argued that since the defendant was the only one who knew about the statement, he was obviously the source of the threat. The judge admitted the statement, and Lewis was convicted. On appeal, the key issue centered on the court’s 2002 holding in People v. Berroa, 99 NY2d 134. In that case, the court said attorneys must withdraw whenever they testify against their client on a significant issue. Tuesday, the majority apparently concluded that it is rarely if ever an insignificant event when an attorney testifies against his or her client. Writing for the majority, Rosenblatt noted that the attorney’s testimony was “neither earth-shattering nor insignificant,” a point on which all seven judges agreed. He said that when the defense attorney willingly testified against his client “it was enough to rupture the attorney-client relationship not only for the Sirois hearing but for the balance of the trial itself.” Joining the majority opinion were Chief Judge Judith S. Kaye and Associate Judges George Bundy Smith, Carmen Beauchamp Ciparick and Victoria A. Graffeo. Judge Robert S. Smith wrote a dissent, joined by Judge Susan Phillips Read. The dissenters said the defense attorney should have objected when the prosecutor called him as a witness, and that the trial court should have sustained the objection. However, they stressed that the defense counsel’s testimony occurred outside the presence of the jury and that there is no evidence the attorney presented anything other than an aggressive and thorough defense. “[T]he majority seems to be creating another per se rule — that no attorney-client relationship can survive an attorney’s testimony against his client, no matter how brief and no matter what the circumstances,” Smith wrote. “I see no justification for such a rule, which reflects a tenderness toward the attorney-client relationship quite at odds with the approach taken in a number of other cases.” John A. Cirando of Syracuse argued for the defendant. Steuben County District Attorney John C. Tunney appeared for the prosecution.

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