Stato of New Sforks County, Court Chambers Cnoida County Courthouse Vltica, Now Yorke 18501-2265 (315) 266-4321 — Fax (345) 731-3416 Principal Court litorney Carol Bl, Spina Shoretany November 4, 2015 Hon. Scott D. McNamara Oneida Co. District Attorney Oneida Co. District Attorney’s Office 235 Elizabeth Street Utica, NY 13501 Re: Motion to Quash Subpoena Unindicted Matter Dear Mr. McNamara: Enclosed please find a copy of the Decision and Order with regard to the above-captioned matter. Vory truly yor BARRY /M. DONALTY Acting Supreme Court Justice BMD/cas enc.STATE OF NEW YORK SUPREME COURT ONEIDA COUNTY IN THE MATTER OF GRAND JURY SUBPOENA ISSUED BY THE ONEIDA COUNTY GRAND MOTION TO QUASH GURY FOR CERTAIN ELECTRONIC EVIDENCE. SUBPOENA UNINDICTED MATTER Motion to Quash Subpoena DONALTY, J.: DECISION AND ORDER The Oneida County Public Defender’s Office has moved to quash the subpoena duces tecum issued to it by the Oneida County Grand Jury. Specifically, Assiatant Public Defender Kurt Schultz made the motion before this Court and argued that the attorney-client privilege between himself and a potential defendant in a homicide and assault investigation prohibits him from complying with said subpoena. The subpoena requests that the Public Defender’s Office turn over certain electronic evidence from the investigation which the Oneida County District attorney's Office has a reason to believe is in the custody and control of the Public Defender. The subpoena duces tecum issued to Mr, Schultz requires him to produce any and all telephones, computers, iPads, video cameras, and/or associated electronic storage devices for such electronic equipmentthat contains any photographs, video recordings, audio recordings or any other documentation or memorialization of the activities of the corporation, further clarified as the Word of Life Church, between the dates of October 1, 2015 through and including October 12, 2015. Oneida County District Attorney Scott McNamara argued that, as a result of reviewing phone conversations between members of the Word of hife Church who have been arrested in this case, that the District Attorney’s Office has reasonable cause to believe that there is electronically recorded evidence of the two individuals being assaulted. The alleged assaults transpired on or about October 11, 2015 through and including October 12, 2015. DA McNamara quoted text messages between one of the defendants and his mother which were sent and received during the time of the alleged assaults. Defendant’s mother sent a text message asking “Is the cam still working?” to which defendant sent a reply text message stating “Yes”. Another text message from this defendant's mother stated “I’m glad it’s recorded so that there's a record". Further, DA McNamara quoted a text message between this same defendant and the instant prospective defendant, Tiffanie Irwin, in which the one defendant asked Ms. Irwin “Are there anymore SD cards?”. Later, during the alleged assault, Ms. Irwin sent a text message to that same defendant asking if the “SD cardsand paraphernalia away, yes?” to which the defendant's text message responded “Yes”. DA McNamara argues that the People have reason to believe that certain electronic evidence was thereafter either provided to the Public Defender’s Office or to a person by the name of “Perry” Assistant Public Defender Schultz stated on the record that he established an attorney-client relationship with Tiffanie Ixwin only after she relayed certain information to him about the pending homicide and assault investigation. Mr. Schultz was of the opinion that he did not have to comply with the grand jury subpoena because whatever information he learned from his client was protected by the attorney-client privilege. The Court clarified for Mr. Schultz that the grand jury subpoena was not requesting his presence for the purpose of giving testimony at the grand jury. Rather, the subpoena was for whatever physical evidence the Public Defender’s office may have in its possession relative to the ongoing criminal investigation. As a result of this clarification, Mr. Schultz stated that he did not have any cameras, but that he was in possession of two cellular phones and an unknown quantity of SD cards. Mr Schultz further stated that no one else was present when his client provided him with this physical evidence. Ethical Opinions New York State Ethics Opinion #466 (1977 Wb 15694)addressed when a client, convicted of embezzlement, requested that his lawyer accept and retain certain negotiable instruments purchased by the client with the proceeds of his crime. The Opinion states: “Canon 4, which enjoins lawyers to preserve the confidences and secrets of their clients, is intended to encourage clients to take full advantage of the benefits which may be derived from legal counsel and consultation. EC 4-L It does not relieve lawyers from their obligation as stated in Canon 1 to ‘assist in maintaining the integrity and competence of the legal profession.’ See, BC 1-4 and DR 1-102(A), It is not intended to suggest that lawyers may ever exceed ‘the bounds of the law.’ canon 7, And, it most assuredly is not intended to create a means by which a client can conceal evidence through the artifice of storing it with his lawyer or reap the benefits of his crime by depositing its proceeds with him for safekeeping. See, NY State 405 (1975) and, In re Ryder, 263 Fsupp 360, affd, 381 F 2a 713 (4* Cir'1967). The ethics of our profession have long differentiated between a lawyer's right to protect information acquired by him in the course of his representation of a client and affirmative action on his part leading to the suppression of evidence or in furtherance of criminal conduct.“ The Opinion then discussed “passive conduct” where a lawyer was not held to be under a duty to come forward with evidence that was in his possession. Notably, however, the opinion made a clear distinction between a lawyer who did not disclose the location of stolen property and a lawyer who hid a client's weapon. “A very different result would obtain if the lawyer engaged in affirmative acts in aid of his client's wrongdoing, such a situation was presented in, In xe_Ryder, supra, where a lawyer transferred a weapon and stolen money from his client's safe deposit box to his own pursuant to a power ofattorney authorizing him to ‘so dispose of the said contents as he sees fit.’ The lawyer knew at the time that his client was charged with armed robbery. The court held that such conduct was illegal as well as unethical arid that the lawyer was in no way protected by his claim of attorney-client privilege.” New Yor! aw People v. Investigation into Certain Weapon, 113 Misc2d 348 (Kings Co. 1982], also references the Ryder case. In Investigation into Certain Weapon, a proceeding was brought to quash a subpoena duces tecum which required production of all tangible property relating to an automatic pistol, including ammunition and an ammunition clip, to the grand jury. The court held that even though the delivery of ammunition and clip to attorney fell within the scope of the attorney-client privilege, public policy demanded that this tangible property, which may have been involved in the crime, should be made available to the grand jury for its investigation. Furthermore, the grand jury’s primary function is to investigate crimes and determine whether sufficient evidence exists to accuse an individual of a crime (Matter of Additional Jan, 1979 Grand Jury of Al reme Ct. v. Doe, 50 N¥2d 14, 19 [1980]). The Grand Jury plays a fundamental role in the administration of the criminal justice system (People v. Doe, 84 AD2d 182, 195 [2" Dept. 1981]) and, in order to “fulfill its investigatory function, the grand jury possesses broad powers whose scope cannot be limited(see, People v. Stern, 3 N¥2d 658 [1958]; People ex rel. Livingston vi_tyatt, 186 NY 383 [1906}). Thus, it has been held that constitutional and statutory rights of the individual must sometimes yield to a grand jury's search for evidence (Matter of New York state Tax Commn. v. State Organized Crime Task Force, 89 Misc 2d 275, 277 [1977] [and citations within]; see Viraq v. Hynes, 54 NY2d 437, 443 [1981]; People v. Doe, supra).” (Matter of Grand Jury Subpoena_D: ne_30, 2003, 1 Misc3d 510, 512 [Suffolk County 2003]) [internal citations omitted] . While the attorney-client privilege: “exists to ensure that one seeking legal advice will be able to confide fully and freely in his attorney, secure in the knowledge that his confidences will not later be exposed to public view to his embarrassment or legal detriment. ... The privilege, however, is not limitless” (Investigation into Certain Weapon, supra, at 350) (internal citations omitted]. Therefore, not all communications between an attorney and client are privileged, “In order to make a valid claim of privilege, it must be shown that the information sought to be protected from disclosure was a ‘confidential communication! made to the attorney for the purpose of obtaining legal advice or services. ... [B]ven where the technical requirements of the privilege are satisfied, it may, nonetheless, yield in a proper case, where strong public policy requires disclosure” (Id. at 351).In considering the nature of the communication between Mr, Schultz and Ms. Irwin, it must be remembered that the District Attorney's Office is only seeking production of the physical items Ms. Irwin gave to Mr, Schultz, not the substantive conversations pertaining to said transaction “The attorney-client privilege is not a cloak which permite either the defendant or his attorney to withhold evidence of criminality. Otherwise instrumentalities and fruits of crime would be beyond the reach of the law by the mere fact that a defendant turned them over to an attorney. ... Public policy demands that this tangible property, for which there are reasonable grounds to believe may have been involved in a crime, should be made available to the grand jury for its investigation” (Id. at 352). “(S]ince the privilege prevents disclosure of relevant evidence and thus impedes the grand jury’s quest for truth, it must ‘be strictly confined within the narrowest possible limits consistent with the logic of its principle’" but the attorney-client privilege cannot be an “obstacle” to the truth-finding process (Matter of Grand Jury Subpoena Dated June 30 2003, supra at 514). “In exploring the extent of the privilege, the Court of Appeals has acknowledged that defining its limits is not an easy task and has offered as guidance that ‘much ought to depend on thecircumstances of each case’ (see Matter of Jacqueline F., supra at 222; Matter of Kaplan [Blumenfeld], 8 N¥2d 214, 219 [1960], quoting 8 Wigmore, Evidence §2313, at 609 [McNaughton rev 1961])" (Id.). Accordingly, while the SD cards and cell phones provided to Mr. Schultz from Ms. Irwin fall within the ambit of the attorney-client privilege, the Oneida County Public Defendex’s Office cannot, by virtue of the attorney-client privilege, refuse to comply with the grand jury subpoena. Mr. Schultz is hereby ordered to turn over the two cell phones and SD cards he received from Ms. Irwin to the District Attorney’s Office without the necessity of the Mr. Schultz personally appearing before the grand jury. The motion to guash is accordingly denied except that defense counsel shall deliver forthwith the property in its possession to the Oneida County District Attorney inetead of the grand jury. The Eoregoing constitutes the opinion, decision and order of the Court. ENTER. gusTIce DATED: October 29, 2015