Opinion
Argued January 7, 1998
Decided February 11, 1998
Appeal by permission of the Presiding Justice of the Appellate Division of the Supreme Court in the First Judicial Department (Richard T. Andrias, J.).
Stanley L. Cohen, New York City, for appellant.
Mark Dwyer of counsel, for respondent.
Philip R. Edelbaum, Roger L. Stavis, for amicus curiae.
Richard A. Brown, amicus curiae.
Defendant, an attorney, was defense counsel for Dominick Maldonado, one of six persons indicted in a drug conspiracy case. One of the other persons indicted, Susan Chang, who has since died of cancer, cooperated with the prosecution and testified before the Grand Jury that the head of the drug ring had provided lawyers for all the defendants, and that attorney Stewart, the defendant in the instant case, was the lawyer for the head of the drug ring as well as for Maldonado; the witness also testified that her defense counsel had warned her not to cooperate with the prosecution because the head of the ring would have her killed and that the head of the ring would find out about the cooperation through attorney Stewart, because all the lawyers "go back to Lynne Stewart." Shortly after the above testimony, the prosecution subpoenaed Stewart and two other defense attorneys. Compliance with the subpoenas would have given the lawyers full transactional immunity. Their motion to quash was denied. The Appellate Division modified only by staying the subpoenas until the attorneys' representation of the defendants should be terminated, noting that the information sought was neither privileged nor directly incriminatory of their clients but that staying the enforcement of the subpoenas until the attorneys' representations of the defendants were terminated would ameliorate the inevitable "chilling effect" of the subpoenas ( see, 156 A.D.2d 294, modfg 144 Misc.2d 1012). Without her knowledge, Maldonado told the court that he wanted a new lawyer but that he was afraid to discharge Stewart because the person who paid her fee was "too smart" and his life and his family's lives would be in danger. The court then appointed another lawyer (shadow counsel) to represent Maldonado in his attempted cooperation. When Stewart became aware of the arrangement, she asked to be relieved. Her application was granted. The prosecution once again subpoenaed Stewart. She appeared but responded to every question by refusing to answer, on constitutional grounds and on the right of any client of hers, past or present, to absolutely privileged communications with his attorney, Stewart was indicted for criminal contempt in the first degree, a class E. felony, and moved for an order dismissing the indictment in furtherance of justice. Supreme Court granted the motion (see, 159 Misc.2d 776).
The Appellate Division concluded, inter alia, that Supreme Court erred in dismissing the indictment in the furtherance of justice.
MEMORANDUM
The appeal should be dismissed.
The Appellate Division's reversal was based on that Court's independent weighing and factual evaluation of the particular circumstances presented with reference to the 10 statutory factors for a dismissal of an indictment in the furtherance of justice (see, CPL 210.40 [a]-[j]; People v. Clayton, 41 A.D.2d 204; see also, People v. Belge, 41 N.Y.2d 60). Thus, the Appellate Division's determination to reverse does not satisfy the jurisdictional predicate that it be made "on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal." (CPL 450.90 [a]).
In view of the mandated dismissal for a threshold jurisdiction impediment, this Court has no authority to address the issue of "shadow counsel," argued by the parties. As we have previously made clear, a dismissal by this Court has no precedential value on the merits, and "`does not reflect indorsement of the rulings'" by any of the courts in the various proceedings below (see, People v Montesano, 58 N.Y.2d 736, 738; People v. Dercole, 52 N.Y.2d 956, 957).
Chief Judge KAYE and Judges TITONE, BELLACOSA, LEVINE, CIPARICK and WESLEY concur; Judge SMITH taking no part.
Appeal dismissed in a memorandum.