People v. Depallo

96 N.Y. 2d 437 (2001)

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Nature of the Case

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Facts

D 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. D's blood was found at the scene and on the victim's clothing. D's fingerprint was also discovered in the home and, upon arrest, he made several incriminating statements placing him at the scene of the crime. D 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, D insisted on testifying. Defense counsel elicited the testimony in narrative form. D 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. Defense counsel addressed the court in Chambers, outside the presence of D and the prosecutor. Defense counsel informed the Court that … D was going to take the witness stand, and that he had previously told me he was involved in this homicide. Counsel told D that counsel cannot participate in any kind of perjury, and you really shouldn't perjure yourself. Counsel also said he never told me what he was going to say, but I knew it was not going to be the truth, at least to the extent of him denying participation. During summations, defense counsel did not refer to D's trial testimony. D was convicted. The Appellate Division affirmed, rejecting claims that D was denied effective assistance of counsel when his attorney disclosed the perjured testimony to the court and that the ex parte conference was a material stage of the trial. D appealed.