A judge overstepped his authority when he precluded Queens prosecutors from using a defendant’s pre-arraignment statement due to what the judge said were ethical violations by the Queens office, a Brooklyn appellate court has ruled.

A unanimous panel of the Appellate Division, Second Department, yesterday issued a writ of prohibition blocking Acting Supreme Court Justice Joel Blumenfeld (See Profile) from imposing preclusion as a sanction against the district attorney’s office for a program that the judge viewed as “misleading and deceptive.”

The appellate court expressed no opinion on the constitutionality or ethics of the program as applied in the case of Elisaul Perez. Moreover, it acknowledged that the judge had the power to exclude the statement if he found it to be involuntary. Rather, it said he lacked the power to act solely based on his evaluation of the program’s ethics.

“Justice Blumenfeld lacked the power to preclude Perez’s statement, since the sanction of preclusion was not imposed to remedy any prejudice to Perez or any violation of Perez’s rights, but for the purpose of sanctioning perceived unethical conduct, in general. Accordingly, as Justice Blumenfeld’s order precluding the videotaped statement as a sanction for unethical conduct committed by the District Attorney’s office in administering the Program in general was not mere legal error, but, rather, an improper arrogation of power, the remedy of prohibition lies,” Justice Peter Skelos (See Profile) said, writing for the panel in Brown v. Blumenfeld, 2012-03981.

He was joined by Justices William Mastro (See Profile), Anita Florio (See Profile) and L. Priscilla Hall (See Profile) in a case that was argued on June 22.

Yesterday’s ruling is the latest round in a face-off between the judge and the Queens district attorney about the propriety of the pre-arraignment interview program, which has been in place since 2007.

Perez faces charges including two counts of second-degree robbery for the alleged March 2009 theft of an iPod.

Just before his arraignment, Perez was read a script by prosecutors and a detective investigator that told him, among other things, “If there is something you would like us to investigate concerning this incident, you must tell us now so we can look into it.”

Perez was subsequently Mirandized; he said he understood his Miranda warnings and agreed to give a videotaped statement on his version of events.

Perez moved to suppress the videotaped statement, arguing he had not knowingly and intelligently waived his rights.

Blumenfeld raised concerns that the script used in the program could violate Rule 8.4(c) of the Rules of Professional Conduct, which forbid attorneys from “engag[ing] in conduct involving dishonesty, fraud, deceit or misrepresentation.”

He further determined it was permissible to address alleged ethical violations in the context of a suppression motion.

But the Queens District Attorney’s Office sought a writ of prohibition to restrain the judge from ruling on whether ethical rules had been violated.

The Second Department denied the writ in October 2011, declining to intervene because it viewed the prosecution’s writ as a bid to restrain Blumenfeld from doing something he was “authorized” to consider, whether purported ethical violations triggered involuntary statements (NYLJ, Oct. 7, 2011).

Blumenfeld subsequently ruled that he could not determine Perez’s statements were involuntary, pursuant to Criminal Procedure Law §60.45(2). Nevertheless, the judge said he found the script “clearly violated Rule 8.4(c)” because the prosecution did not keep its promise to investigate the version of events Perez laid out.

As a sanction for what he viewed as the district attorney’s unethical conduct, he precluded the office from using the videotaped statement (NYLJ, April 18, 2012).

In its current appeal, the district attorney’s office maintained that even if the judge correctly identified an ethical violation—-which, it maintained, he hadn’t—he had exceeded his authority by precluding the evidence on that basis.

The Second Department agreed.

Skelos observed that no particular statute gave a court the power to exclude evidence that was obtained in violation of attorney ethics rules.

Moreover, the prosecution would be unable to seek appellate review of such a preclusion order, Skelos said.

He noted that Criminal Procedure Law §450.20(8) allowed prosecutors in some cases to appeal suppressed evidence. But Blumenfeld declined to suppress the evidence.

“As such, the People could not appeal the preclusion order under CPL 450.20(8), and no other provision of that statute permits appeal of the subject order…[T]he nonappealability of the preclusion order weighs heavily in favor of invoking the remedy of prohibition,” Skelos said.

Blumenfeld argued he was allowed to preclude the evidence pursuant to Judiciary Law §2-b(3), which allows courts “to devise and make new process and forms of proceedings, necessary to carry into effect the powers and jurisdiction possessed by it.”

But Skelos said Judiciary Law §2-b(3) “only gives Justice Blumenfeld the power to devise new process to carry out powers that he already possesses.”

Blumenfeld also said he was allowed to take his course of action because of Judiciary Law §90(2), which says attorneys are appointed by the courts and can be governed by the rules of those courts. Blumenfeld pointed to a clause stating that “the supreme court shall have power and control over attorneys and counsellors-at-law.”

But the power to regulate attorneys’ conduct is “principally vested” in the departments of the Appellate Division that can begin disciplinary proceedings, said Skelos.

Furthermore, he said, “the sanction imposed by Justice Blumenfeld was not meant to regulate the conduct of the attorneys appearing before him in connection with People v. Perez, but, rather, to regulate the administration of a program adopted by the District Attorney’s office. In this manner, Justice Blumenfeld exceeded his jurisdiction to adjudicate People v. Perez and to regulate the conduct of the attorneys in connection with the adjudication of that case.”

Skelos noted in a footnote that “the issue of whether there was a violation of any of Perez’s constitutional or statutory rights, or of Miranda, is not before us, and no conclusions are made in this regard.”

In September, however, a Second Department panel—including Skelos—did hear oral arguments on three consolidated criminal appeals that, for the first time, squarely raised the constitutional questions of the program (NYLJ, Sept. 5). It has not yet ruled on those cases.

Queens District Attorney Richard Brown said in a statement, “Our position throughout this litigation has been that the proper focus of a suppression hearing must be directed at the constitutionality and voluntariness of a suspect’s statements and that a statement may only be suppressed if it is involuntarily made. In spite of his having found that the defendant’s statement in Perez was voluntary, Judge Blumenfeld barred the introduction of the statement. In so doing, the Second Department has now held, as we had argued, that he exceeded his authority and that he improperly used the extreme remedy of suppression as a sanction meant to ‘regulate the administration of a program’ rather than focusing on the facts of the case before him.”

Assistant District Attorneys John Ryan, James Quinn, Robert Masters and Donna Aldea appeared for the district attorney.

Mark Pomerantz and Jane O’Brien of Paul, Weiss, Rifkind, Wharton & Garrison represented Blumenfeld. Pomerantz declined to comment on the ruling.

Since June 2007, the pre-arraignment program has processed 11,530 defendants. Forty-one percent of the defendants made videotaped statements while 20 percent have confessed and 12 percent have denied perpetrating the crime. Another 25 percent asked for an attorney.

@|Andrew Keshner can be contacted at akeshner@alm.com.