26 years ago, Antwon Dennis was convicted of murder, having been represented by a lawyer hired by the Brooklyn District Attorney’s Office. A judge has ordered a new trial, siting an attorney conflict of interest that endangered the defendant’s right to counsel.
“In this instant action, there was a conflict of interest which at least created a substantial risk that the defendant’s confidence would be abused,” Acting Brooklyn Supreme Court Justice ShawnDya Simpson wrote in
People v. Dennis, 12843/1989.
Vecchione served as the original assigned counsel for Antwon Dennis, who was arrested in 1990 for a fatal shooting a year earlier.
Vecchione later became the rackets division chief under District Attorney Charles Hynes. Vecchione has faced allegations of prosecutorial misconduct but has denied wrongdoing. He left the office in 2013, just before Hynes was defeated for re-election.
Vecchione represented Dennis for about a year and a half. During that time, he interviewed witnesses and made about 20 court appearances for Dennis.
After submitting an employment application to the district attorney’s office in January 1991, Vecchione accepted a job offer in October 1991 and was relieved of his defense duties a month later.
Vecchione became chief of the trial division while Dennis was on trial. Dennis was convicted of second-degree murder and given a 50-year-to-life sentence. Dennis, 43, is incarcerated at Sing Sing Correctional Facility.
Scott Brettschneider of Queens, who represented Dennis in seeking a new trial, said his client had filed previous unsuccessful post-conviction challenges questioning Vecchione’s legal representation.
In Dennis’ latest motion under Criminal Procedure Law §440.10, he argued his Sixth Amendment right to counsel was breached because of Vecchione’s move from the defense to the prosecution while the case was still pending.
Moreover, he argued that his next attorney had been ineffective because he did not ask for a special prosecutor to prevent the conflict of interest.
The current district attorney, Kenneth Thompson, opposed the motion.
Simpson observed that when a defense attorney handling a case in its early stages becomes employed by the district attorney’s office prosecuting the case, the defendant and the public get an “unmistakable appearance of impropriety and [the situation] create[s] the continuing opportunity for abuse of confidences entrusted to the attorney.”
Simpson said the standard for reversal in cases involving conflicts of interest “requires that the defendant be prejudiced or that there was a substantial risk of abuse of the defendant’s confidences.”
Dennis said he was prejudiced, or at least faced a “substantial risk of abuse of confidence.”
Simpson noted Vecchione’s ascent in the office. His influence and supervisory roles in the same office pressing the criminal case against Dennis created the circumstances for information sharing, Simpson said.
“The substantial risk of a breach of the defendant’s confidences is very real under the circumstances shown and a conflict-based ineffective assistance of counsel is presented,” she said.
Prosecutors argued there was no interaction between Vecchione and Gerard Keogh, the trial prosecutor in Dennis’ case.
“However, this assertion alone does not negate the fact that the two, by Mr. Keogh’s own admission, conversed and existed in the same office,” Simpson said.
The prosecution argued in court papers that the conflict of interest claims were procedurally barred as they were “largely repetitive” of arguments raised in previous, unsuccessful challenges.
Moreover, the defense claims about Vecchione’s alleged disclosures to the prosecution “were unsubstantiated and do not warrant vacatur.”
Yet Simpson said there was “no cause to assume Mr. Vecchione would not have shared information concerning the defendant’s case with his office. There was no concerted plan, system or mechanism set in place to ameliorate the conflict of interest and substantial risk of breach of the defendant’s confidences.”
The judge said Dennis’ claimed innocence was “not determinative at this juncture as the defense has established that there was a substantial risk of abuse of the defendant’s confidences and the appearance of impropriety.”
The file in the case cannot be located, but Simpson denied Dennis’ motion for discovery, sanctions, an adverse inference and a hearing to reconstruct the file.
In an interview, Vecchione said the ruling was “flat-out wrong” and said after being relieved of his defense obligations, he knew nothing about the case or its outcome until learning about the post-conviction challenge last year.
“The allegation was outrageous and ridiculous. Nobody in their right mind would do something unethical like that. Certainly I didn’t,” he said.
He questioned how a finding on the matter could have been made without a hearing, noting he was never asked to submit any affirmations or affidavits to the current proceedings.
Brettschneider said he was very pleased with the holding. “It’s disturbing [that] no one, including Mr. Vecchione, asked for a special prosecutor. … I think it’s incumbent on everyone involved in the case, from the judge to the D.A., to have ensured that Mr. Dennis have a conflict-free attorney.”
A Brooklyn District Attorney’s Office spokeswoman said prosecutors are studying the decision and reviewing their options.
Originally posted by Andrew Keshner on newyorklawjournal.com.
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