People v Novak
Annotate this CaseDecided on March 11, 2013
County Court, Sullivan County
The People of the State of New York
against
Paul Novak and Scott Sherwood, Defendants.
233-2012
Hon. James R. Farrell
Sullivan County District Attorney
414 Broadway
Monticello, NY 12701
Attorney for the People
Gary Greenwald, Esq.
Greenwald Law Offices
99 Brookside Avenue
Chester, NY 10918
Attorney for Defendant Paul Novak
Benjamin Greenwald, Esq.
Law Offices of Benjamin Greenwald
1229 Route 300
Newburgh, NY 12550
Attorney for Defendant Scott Sherwood
Frank J. LaBuda, J.
The People have filed a motion for a Curcio [FN1] hearing to determine whether retained counsel, Benjamin Greenwald, Esq., should be disqualified to represent Defendant Scott Sherwood (hereinafter, "Sherwood") in the above-captioned murder indictment based on conflict of interest and other factors relating to the effective and legal assistance of counsel. Benjamin Greenwald, Esq., has submitted an affirmation in opposition and a signed, but unsworn waiver of any counsel conflict from Sherwood. All parties appeared for oral argument on March 7, 2013, [*2]on the issue of whether the Court should conduct a Curcio hearing and appoint independent counsel for Sherwood for the purposes of this inquiry.
FACTUAL AND PROCEDURAL BACKGROUND
In the early morning hours of December 13, 2008, the emergency services dispatcher in Sullivan County received a 911 call at approximately 6:37 am, reporting a structure fire on a rural road in the town of Tusten. Minutes later, at 6:42, volunteer firefighters from area fire companies were en route. At 6:46 am, firefighters were on the scene at 222 County Route 25 in the small hamlet of Narrowsburg, battling a fully involved and raging inferno that, by the late morning, reduced a once lovely single family home to a pile of smoldering rubble and a possible crime scene. When firefighters finally extinguished the last of the stubborn flames, they were faced with sifting through the charred remains of the two story house that caved in on itself and settled into the basement to look for survivors or the cause of the fire.
The police and fire investigators had information that the home was owned by Paul and Catherine Novak, and that Mrs. Novak lived in the house with the couple's two children and family dog. The couple had separated in March, 2008, and were planning to divorce. Not knowing whether anyone was in the house when the fire started, and having no communication from anyone in the family, emergency personnel began the task of making sure no one was trapped, injured or killed in the fire. They sifted through several feet of hot spots and charred portions of the house that had fallen into the basement.
They came upon an unidentified body first. Later identified, Catherine Novak's lifeless body lay partially burned on the basement floor, in the doorway between the main part of the basement and the utility room. She was covered by several feet of debris which had fallen on her when the house collapsed into its basement. They next came upon a dog crate. It was sandwiched between pieces of burned and blackened floorboards in the utility room of the basement, apparently having fallen through the first floor when it finally collapsed. In it, the burned body of the family's dog lay motionless. Firefighters alerted State Police investigators who were already present, treating the situation as a potential crime scene. The firefighters continued searching for more victims, knowing two children had lived in the house with Mrs. Novak. No additional human or animal remains were found, however, and the scene was finally cleared at 2:49 pm that day.
Authorities contacted the husband, Paul Novak,[FN2] who at the time was residing in Glen Cove (Nassau County) with his girlfriend, Michelle LaFrance. Novak informed the police that he had picked up the children the previous day, December 12, 2008, and they were with him in Glen Cove. In the meantime, Catherine Novak's body was transported to Catskill Regional Hospital for an autopsy. [*3]
During the weeks following the structure fire and death of Catherine Novak, arson investigators and police could not determine the cause of the fire; they indicated in their first report there was no evidence of arson. The well qualified pathologist at Catskill Regional Hospital, Wing C. Chau, MD, determined Catherine Novak's death was accidental; that she died from mechanical fixation of the thorax as a consequence of debris falling on her body and compressing her chest. The pathologist indicated that her body was badly burned, in some spots down to the bones, but the back of her body, which lay on the basement floor, was relatively intact and unburned.
State Police investigators spoke with Paul Novak on several occasions after the fire. They spoke with witnesses. They spoke with Novak's girlfriend, LaFrance [FN3], who confirmed he was home throughout the evening of December 12 into December 13, 2008. They conducted a full and thorough investigation of Catherine Novak's death and the fire for some time after the incident, and after being satisfied with Novak's cooperation and responsiveness to their inquiries, as well as his alibi witness, they cleared him of any wrongdoing in connection with the fire and death of his wife. Indeed, independent insurance adjusters ruled the fire accidental and paid Novak on the policies.
After the death of his wife, Novak continued to work as an EMT in New York City and to live with his girlfriend, Ms. LaFrance, and his two children in Nassau County. Thereafter, Novak, his children, and LaFrance relocated to the state of Florida. At some point, the relationship between Novak and LaFrance ended, and they parted ways. By the summer of 2012, Novak was living with his children, still in Florida. LaFrance was also still living in the state of Florida, however, now she was involved in a relationship with a local police officer in Florida.
In the summer of 2012, Michelle LaFrance contacted the New York State Police regarding the 2008 fire and Catherine Novak's death. She gave a statement indicating she lied in her 2008 statement about Paul Novak's whereabouts at the time of the incident. LaFrance now stated that Novak was not home at the time of his wife's death; that he and a friend of his, Scott Sherwood, the indicted co-defendant herein, drove upstate to Narrowsburg so Novak could kill his wife.
On or about the 27th day of September, 2012, pre-indictment, New York State Police arrested Scott Sherwood in connection with the December, 2008, death of Catherine Novak. On that same day, Paul Novak, the victim's surviving husband, was arrested in the State of Florida, and charged with murder and arson by felony complaint.
Shortly after his arrest, Novak retained Gary Greenwald, Esq., of Greenwald Law Offices of Chester, New York, to represent him. Sherwood retained Glenn Kroll, Esq., of Bloomingburg, New York. On the 24th day of October, 2012, a Sullivan County Grand Jury indicted Scott Sherwood, by Indictment #233-2012, acting in concert and together with Novak, with two counts [*4]of Murder in the Second Degree, one count of Burglary in the Second Degree, and one count of Arson in the Third Degree. On that same date and by way of the same Indictment #233-2012, a Sullivan County Grand Jury indicted Paul Novak, charging him with Murder in the First Degree, Grand Larceny in the Second Degree, two counts of Insurance Fraud in the Third Degree, and by acting in concert and together with Sherwood, two counts of Murder in the Second Degree, Burglary in the Second Degree, and Arson in the Third Degree.
After his arrest, and prior to retaining counsel, Sherwood made a detailed written statement to the police indicating that Novak paid him to drive Novak from his home in Nassau County to the victim's home in Narrowsburg (Sullivan County)[FN4] for the purpose of killing his wife. In his statement, Sherwood indicted that when he picked Novak up on the night of December 12, Novak was mixing something he told Sherwood was chloroform. Sherwood stated he used his red Chevrolet Blazer to drive Novak to Narrowsburg later that evening, but that he waited in the vehicle some distance away, hidden in a wooded area, while Novak walked to and from the house. Sherwood stated Novak was dressed in hospital scrubs, surgical booties over his shoes, a hat, and gloves when he returned from the house, and told Sherwood that he strangled Catherine Novak during a struggle because the chloroform did not work. According to Sherwood, Novak also told him he set the house on fire. Novak made no statements to the police after his arrest.
The District Attorney further submits that subsequent to making the above-referenced statement to the police, on October 26, 2012, Sherwood confirmed the accuracy of that statement and professed his innocence in having anything to do with the death of Catherine Novak. Sherwood's attorney at the time, Glenn Kroll, and two investigators were also present during that proffer session and conference with Sullivan County District Attorney James R. Farrell. The People claim the meeting was set up for the purpose of negotiating a plea for Sherwood in exchange for his cooperation. On or about November 17, 2012, however, Sherwood dismissed Glenn Kroll, Esq., and privately retained Benjamin Greenwald, Esq., son of Gary Greenwald, Esq., Novak's attorney.
REQUEST FOR A CURCIO HEARING
It is the People's position that Benjamin Greenwald, Esq., has a conflict of interest under Rule 1.10(h) of the Rules of Professional Conduct and cannot properly or effectively represent Sherwood's best defense interests because Novak's attorney is Benjamin's father. The argument is largely based on the People's belief that (1) if Benjamin Greenwald, Esq., was advocating for Sherwood's best interests in this case, he would have contacted the District Attorney's office shortly after being retained to actively pursue plea negotiations on behalf of Sherwood, (2) Benjamin Greenwald has a pecuniary interest in his father's law practice and estate and will not do anything that threatens that interest, and (3) Benjamin Greenwald will not effectively advise [*5]Sherwood in a manner that would interfere with the assumed harmonious relationship between father and son and the necessity to keep Sherwood off the stand and not testify against Novak.
Rule 1.10(h) states,
A lawyer related to another lawyer as parent, child, sibling or spouse shall not represent in any matter a client whose interests differ from those of another party to the matter who the lawyers knows is represented by the other lawyer unless the client consents to the representation after full disclosure and the lawyer concludes that the lawyer can adequately represent the interests of the client.
Rules of Professional Conduct, Part 1200, R. 1.10(h), emphasis added.
During oral argument on March 7, 2013, the People strenuously argued that by virtue of the familial relationship between Benjamin and his father, Gary Greenwald, there was an initial conflict of interest pursuant to Rule 1.10(h) of the New York Rules of Professional Conduct and it was therefore necessary that the Court conduct a Curcio hearing and appoint independent counsel to report to the Court its findings. Benjamin Greenwald argued there was no actual conflict and that a Curcio hearing was not necessary, as his client, Sherwood, signed a conflict waiver indicating he understood the relationship of the attorneys, that Benjamin Greenwald's siblings, also attorneys, work at Gary Greenwald's office, that he desired and consented to Benjamin Greenwald's continued representation of him, and that he waived any conflict claim.
Conflict of interest issues often arise in criminal matters when one attorney or law firm wishes to represent multiple defendants. That is not the case here. Nor is this a case in which father and son attorneys, with separate law practices, are representing co-defendants who have remained silent and who share a common defense interest. As the People argue, the instant matter before the Court involves father and son attorneys representing co-defendants who have diametrically opposed interests—Novak has remained silent; Sherwood gave an inculpatory statement to the police, as well as to the District Attorney, indicating his only involvement in the alleged December 12 and 13, 2008, plot of Novak was driving Novak to and from Narrowsburg, and stopping to shop in Middletown. Sherwood has steadfastly denied any personal involvement in the arson and homicide and places all blame and responsibility on Novak.
The litigants argue that the Curcio issue in this fact pattern is one of first impression and the parties have acknowledged the lack of any case law on point. Thus, this Court is clearly navigating in uncharted waters and must carefully guarantee the defendant's Sixth Amendment right to effective assistance of counsel, as well as the People's right to obtain a nonreversible error conviction. Therefore, the Court turns its attention to well established case law and precedent addressing conflicts of interest and the appropriate situations in which to conduct a Curcio hearing. [*6]
A criminal defendant's right to effective assistance of counsel is guaranteed by the sixth Amendment to the united State Constitution. Duncan v. Alabama, 881 F2d 1013 [11th Cir. 1989]. Counsel must be "unimpaired by conflicting loyalties." Id., at 1017. The United States Supreme Court has recognized that the harm from a conflict of interest presents itself "in what the advocate finds himself compelled to refrain from doing, not only at trial but also as to possible pretrial plea negotiations and in the sentencing process." See, Holloway v. Arkansas, 435 US 475, 490 [1987]. The Supreme Court has also recognized that the Sixth Amendment also grants a criminal defendant the right to waive the conflict of interest if "he knows what he is doing and his choice is made with eyes open." Adams v. United States ex rel. McCann 317 US 269, 279 [1942].
In United States v. Curcio, 680 F2d 881 [2nd Cir. 1982], in which a conflict arose from a defense attorney wishing to represent two co-defendants in the same matter, the Second Circuit held that a court should appoint independent counsel to advise a defendant of the nature of the conflict, the right to loyal and effective counsel, and the risks of continuing with conflicted or potentially conflicted counsel. Id., at 889. The defendant must have enough time to "digest" the information and situation before making a decision. Id. If a defendant indicates he wishes to move forwarded with the conflicted attorney, the court's task is to assess whether the defendant's decision to do so is knowing and voluntary. Id., at 888.
In People v. Gomberg, 38 NY2d 307 [1975], the New York Court of Appeals recognized a defendant's Sixth Amendment right to the counsel of his own choice, but stated,
Since the right to effective assistance of counsel and the right to retain counsel of one's choice may clash when a retained attorney is involved in an apparent conflict of interest, a Trial Judge has a duty to protect the right of an accused to effective assistance of counsel. At the same time, a court should not arbitrarily interfere with the attorney-client relationship. Id., at 313.
The attorney in Gomberg represented three co-defendants. The Court of Appeals indicated the inquiry made by the trial court was sufficient to protect the rights of the defendants, especially in light of the fact that the trial court informed the defendants they could switch attorneys at any time during the proceedings. Id., at 315.
The U.S. Supreme Court has recognized a defendant's right to counsel of his choice. U.S. v. Cunningham, 672 F2d 1064 [2nd Cir. 1982]. The New York Court of Appeals has likewise recognized the protections afforded by the Sixth Amendment, indicating "there is a presumption in favor of [a defendant's] counsel of choice." People v. Carncross, 14 NY3d 319, 327 [2010]. The right to choose one's own counsel, however, dose not negate a court's obligation to ensure a defendant is receiving competent, loyal and effective assistance of counsel. Id., at 323.
In the case at bar, Benjamin Greenwald, Esq., submitted a signed, but unsworn statement [*7]from Sherwood indicating his understanding of the relationship between Benjamin and Gary Greenwald and the conflict issue, purporting to satisfy the requirements of Rule 1.10(h) of the Rules of Professional Conduct. Sherwood was present in court during extensive oral argument on the issue of whether the Court should appoint independent counsel and conduct a Curcio hearing. At first cursory observation it would seem that Sherwood is aware of the conflict in this case and has waived it. However, there is no independent evidence that Sherwood has been fully advised. Because of the unique circumstances in this case, the Court is compelled, from an abundance of judicial concern, to appoint independent counsel for the purposes of preparing a Curcio hearing report for the Court.
Also, although Sherwood has indicated he is aware of the conflict in this case and wishes to continue with present counsel, the Court must make further inquiry, after Sherwood has had an opportunity to speak with independent counsel regarding the conflict issue, as to whether Sherwood's decision to continue with Benjamin Greenwald is knowing and voluntary. United States v. Curcio, 680 F2d at 888. As the People argue, there is an initial appearance of an actual conflict due to the opposing positions of these defendants and the fact that Sherwood made an incriminating statement to the police, placing blame for arson and homicide on Novak. Contrary to defense counsels' arguments, this case requires more inquiry than that which was had in Gomberg, supra, in which the defendants had a shared defense. Here, Sherwood and Novak do not and cannot share the same defense in light of Sherwood's incriminating statements and in light of Sherwood's attempt to negotiate a plea bargain.
It is therefore prudent for this Court to make further inquiry through appointed independent counsel to determine if it is necessary, as a matter of law, to "properly disqualify the attorney of...defendant's choosing due to that attorney's conflicts, actual or potential, even in the face of defendant's waiver of such conflicts." People v. Carncross, 14 NY3d at 323.
Based upon the above, it is therefore
ORDERED that Samuel M. Braverman, Esq., 901 Sheridan Avenue, Suite 201, Bronx, NY 10451, (718) 293-1977, is hereby appointed as independent counsel pursuant to County Law, Article 18-B, to consult with Defendant, Scott Sherwood, and appear for a Curcio hearing; and it is further
ORDERED that attorney Braverman is to submit a written report of his meeting with Defendant Scott Sherwood within 30 days of the date of this order, at which time the Court will schedule the Curcio hearing; and it is further
ORDERED that Sullivan County District Attorney James R. Farrell, attorney Benjamin [*8]Greenwald, and attorney Gary Greenwald are to cooperate with attorney Braverman to further a complete, fair and prompt investigative report to the Court
This shall constitute the Decision and Order of this Court.
DATED:March 11, 2013
Monticello, New York
______________________________
Hon. Frank J. LaBuda
Sullivan County Court Judge
and Surrogate
Footnotes
Footnote 1:United States v. Curcio, 680 F2d 881 [2nd Cir. 1982].
Footnote 2:At the time, Paul Novak was employed as a paramedic/EMT in New York City.
Footnote 3:Ms. La France was never charged with any crime related to the homicide or her false statement.
Footnote 4:The home, located at 222 County Route 25, Narrowsburg, NY, was the former marital residence of the Catherine and Paul Novak.
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