Thursday, July 07, 2011

DWI Appeal - Prosecutor's Document Alteration Nets 1 Year Suspension

In Matter of Danielle Muscatello, --- N.Y.S.2d ----, 2011 WL 2624002 (N.Y.A.D. 2 Dept.), 2011 N.Y. Slip Op. 05812, The respondent was employed as an Assistant District Attorney with the Office of the District Attorney for Kings County. On November 5, 2009, she was presenting evidence to a Kings County Grand Jury in relation to a defendant who had been arrested on October 18, 2009, for driving while intoxicated. As part of the presentation, she moved into evidence a New York City Police Department form known as the Chemical Test Analysis (hereinafter the Form). The Form is an official document that reports, inter alia, the defendant's blood alcohol content at the time the breathalyzer test is performed. The police officer who administered the test is required to certify on the Form that its contents are true, accurate, and complete. After moving the Form into evidence, the respondent realized that it was incomplete, in that the space where the number reflecting the defendant's blood alcohol content should have been, was blank. Nonetheless, the respondent told the Grand Jury that the form reflected a blood alcohol content of .08%, a fact she knew from other evidence previously introduced before the Grand Jury.

On or about November 12, 2009, the respondent subpoenaed the police officer who had prepared the Form. On that date, knowing that her supervisor was out of the office, the respondent entered and searched that office for the Form. The respondent found the Form in her supervisor's briefcase and removed it. She then directed the police officer to fill in the blank to reflect the defendant's blood alcohol content, and returned the altered Form to her supervisor's briefcase without her supervisor's knowledge.

On appeal in this disciplinary matter, the respondent asked the Court to take into consideration the fact that she was a young lawyer who had been practicing law for less than three years, that she panicked in a high-pressure situation and doubted herself, and that the conduct was isolated and aberrational. Further, she maintained that she has been punished enough as she was terminated from her position as an Assistant District Attorney, which she considered to be an ideal job. She is deeply remorseful and ashamed of her misconduct. Numerous character letters were submitted on the respondent's behalf, all of which attested to her reputation for honesty and integrity. The respondent's present employer, who hired her after full disclosure was made to him of the grand jury incident, indicated in a letter that the respondent “consistently has expressed remorse ... and displayed a high standard of ethical and moral character during her employment with me at my firm.”

The Court found that a 1 year suspension was appropriate. " Notwithstanding the respondent's candor, youth, remorse, and lack of a prior disciplinary history, we conclude that the circumstances of this case warrant the respondent's suspension from the practice of law for a period of one year."

Just as many prosecutors have said about our clients: people are always sorry when they get caught. But the law says they should think about their actions before they commit the act.

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