NASSAU COUNTY OFFICE
WILLISTON PARK, NY 11596
PO BOX 2
TELEPHONE (516) 484-8159
JAPAN OFFICE
9-9-28 HONGOCHO
MINOKAMO CITY, GIFU 505 JAPAN
TELEPHONE (0574) 24-0318
PLEASE REPLY TO NEW YORK CITY OFFICE
August 5, 1998
Re: Complaint of Mr. Samuel H. Sloan
Docket No. 98.2688
Dear Mr. Cahill:
This letter is in response to a complaint filed by Samuel Sloan on June 22, 1998 alleging misconduct by Jonathan Fink, a partner in the law firm of Fink, Katz & Walz, PLLC. In short, Mr. Sloan's complaint is frivolous and inaccurate and thus should be summarily dismissed.
On April 14, 1998, pursuant to the Assigned Counsel Plan (18-B), Jonathan Fink was assigned as a "primary" in AP-1 in Kings County Criminal Court. AP-1 is a felony waiver part where the "primary" attorney is required to work the entire day. In AP-1, the "primary" attorney may be assigned to represent a defendant in which the original attorney handling the case has a conflict or for any other legitimate reason is unable to remain on the case. Additionally, the 18-B "primary" will stand up and represent any defendant whose attorney does not appear in court that day. Attorneys may also ask the 18-B "primary" to stand up on their behalf if they know they cannot remain in court until their client's case is called. The function of the 18-B "primary" is critical so that the court can keep the flow of cases moving and ensure that a defendant has legal representation when his or her case is called.
A defendant charged with a non-narcotic felony is required to appear in AP-1 following arraignment on a criminal court complaint. In AP-1, the District Attorney announces whether a case has been indicted by the grand jury or if there has been no action by the grand jury. In addition, the District Attorney may choose to reduce the felony charges to misdemeanors or even dismiss a case on the merits. Further, the court will remove a case from its calendar (this is referred to as dismissing a case without prejudice) if there has been no grand jury action by the District Attorney after the second adjournment in AP-1. When a case has been dismissed without prejudice, the District Attorney may at a later time indict the case, keep the case off the calendar indefinitely, or restore the case to the calendar as a misdemeanor. Clearly, and contrary to Mr. Sloan's understanding of what the law is, when a case has been dismissed without prejudice this does not mean that the case has been dismissed on the merits.
On April 14, 1998, the case of People v Sloan, Docket No. 98KO14430, was restored to the court calendar at the request of the Kings County District Attorney's Office, When the case was restored, Jonathan Fink appeared on the record on behalf of the defendant. While Mr. Sloan's case had previously been dismissed without prejudice by the court, the District Attorney moved to restore the case to the court calendar so that the felony charges filed against defendant Samuel Sloan, which included Sexual Abuse in the First Degree, could be reduced to misdemeanor charges and then adjourned to an appropriate criminal court part. It is inconceivable that any attorney could have prevented the District Attorney from taking this course of action with regard to the defendant's case.
During the morning session of AP-1 on April 14, 1998, Mr. Monteleone, who is Mr. Sloan's assigned attorney knew that his client's case was going to be restored to the calendar for reduction in AP-1, but that it would not be done until the afternoon session. Mr. Monteleone, however, was unavailable to appear in court during the afternoon. Since he did not want to delay any proceedings, require his client to wait indefinitely, or have his client appear before the court without legal representation, he personally requested that Mr. Fink, the 18-B primary, stand up, on his behalf and represent Mr. Sloan during the reduction of the charges. Mr. Monteleone also requested that Mr. Fink ask for May 12th as the adjourn date. Not only did Mr. Fink fill in for Mr. Monteleone, as he was required to do as the 18-B primary, but the presiding judge, the Honorable Jerome Kaye, requested Mr. Fink to do so as well.
When the case was called the charges were reduced by the Assistant District Attorney to Attempted Sexual Misconduct and Harassment in the First Degree and written copies of the new charges were provided to the court and to defense counsel. As the minutes accurately show, Mr. Fink waived the reading of the new charges. While it seems that the defendant now believes that in doing so his rights have been jeopardized, it should be noted that in virtually every criminal case, felony or misdemeanor, the reading of the charges is waived as a matter of course. All defense attorneys waive the reading of the charges with the realization that one, if the charges were read in every case it would be impossible for the court to handle its case calendar, and two, in no way does waiving the reading of the charges prejudice a defendant. Thus, while a defendant in a criminal action has the right to have the charges read, the reading will have no adverse effect on the case. Certainly any dispute as to the sufficiency of the charges is a matter that is reserved for motion practice. Not only was Mr. Sloan given a written copy of the reduced charges by Mr. Fink, but the bottom line is that in no way did Jonathan Fink's representation of the defendant cause him any harm.
After the case was adjourned Mr. Fink went into the hallway with Mr. Sloan and explained to him that because his assigned attorney, Mr. Monteleone, was unavailable, he had appeared for him. Mr. Fink then explained what the reduced charges meant and also explained that while it was true that the case previously had been dismissed without prejudice, the District Attorney still had every right to restore defendant's case to the calendar. Moreover, Mr. Fink explained that Judge Kaye had every right to issue an order of protection given the nature of the charges, and that with only a one day adjournment any issue regarding the order of protection could be brought to the attention of the criminal court Judge the next day.
Contrary to Mr. Sloan's letter, Mr. Fink did not receive any kind of pecuniary benefit by representing him. The AP-1 "primary" receives an hourly rate and is not paid for the number of cases handled. Mr. Fink appeared on Mr. Sloan's behalf because he was required to do so, and not because he saw Mr. Sloan as an opportunity to receive a financial reward.
Mr. Sloan erroneously states that his case was reinstated because Mr. Fink never read the superceding information or the case file. In reality, the charges against him were still pending and were merely reduced to misdemeanors. Any question as to the sufficiency of the superceding information should have been raised by Mr. Monteleone by motion in the criminal court. In order to accommodate Mr. Sloan, Judge Kaye adjourned his case to the next day in AP-2B so that his attorney could be present. Apparently, the superceding information was sufficient as defendant's case is still pending in criminal court. Mr. Sloan was not misrepresented and suffered no harm from any conduct by Mr. Fink.
In conclusion, Mr. Sloan's complaint is frivolous, uninformed and without merit. Defendant's complaint should be summarily dismissed, and any record of his complaint be sealed to ensure that Mr. Fink's unblemished standing in the New York State Bar is upheld.
Very truly yours,
Fink, Katz & Walz PLLC
By: _____________
Philip Katz
AFFIRMATION
I, Jonathan Fink, have read this letter dated August 5, 1998 which was prepared on my behalf. I verify that the information contained herein is accurate.
__________________
JONATHAN FINK